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Be Current, Stay Current; Evolution of Ban-the-Box Laws as Exampled by Massachusetts


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June 12, 2018 Return to News & Events

Be Current, Stay Current; Evolution of Ban-the-Box Laws as Exampled by Massachusetts

Ban-the-Box laws were designed and implemented to assist protected class of citizens get a better chance at hiring. By eliminating the question of “criminal history” from the application it is felt those with criminal records will get a better chance at gainful employment.

Across the country a large number of states and cities have enacted some manner of ban-the-box legislation. Massachusetts was the second state in the country to enact such legislation, after Hawaii, and recently announced an evolution and change to existing law.

From the National Law Review’s webpage (Jun 08, 18):

“Ban the Box” laws prohibit or limit an employer’s ability to ask a job applicant about his or her criminal record. States, counties and cities have enacted this legislation to help applicants with criminal records combat additional barriers to securing employment. (1)

As greater experience has been gained from working with Ban-the-Box legislation Massachusetts has changed the law, expanding what it can do and how it protects.

From LawAndtheWorkplace.com (May 02, 18):

Massachusetts Governor Charlie Baker recently signed Senate Bill No. 2371, “An Act Relative to Criminal Justice Reform,” into law. The law will go into effect October 13, 2018. Among the Act’s extensive criminal justice reform provisions are several important modifications to the “Ban the Box” anti-discrimination laws… which will further restrict Massachusetts employers’ ability to consider criminal history in making hiring decisions. (2)

Adam Almeida, President and CEO of CriminalBackgroundRecords.com states: “It is important for Hiring Managers and HR Departments to work with a well-qualified third-party pre-employment background screening agency in order to stay fully compliant with existing and potential law, as well as changes to existing law, to avoid potentially expensive legal action.”

The amended law in Massachusetts has some substantive changes that will affect pre-employment background screening.

From LaborAndEmploymentLawCounsel.com (May 24, 18):

In addition, the criminal justice reform bill lowers the number of years before an individual can seek to have a criminal background record sealed or expunged. Ultimately, this means that employers will have less access to criminal history information in making employment decisions. In response to employers’ concerns about being held liable for negligent hiring or retention based on criminal history to which they no longer had access, the legislature included a provision in the bill that incorporates presumptions based on employers’ more limited access to such information. Employers will be presumed not to have notice (or the ability to know) about (i) records that have been sealed or expunged, (ii) records about which employers may not inquire under the anti-discrimination law, or (iii) crimes that the Massachusetts Department of Criminal Justice Information Services cannot lawfully disclose to an employer. (3)

Almeida adds: “How and when Criminal History Records can be used will continue to evolve and what happens in Massachusetts could eventually occur across the country. Ultimately, the use of Criminal History Records will evolve just as Ban-the-box legislation will evolve.”

CriminalBackgroundRecords.com is a third-party background screening company that can provide compliant solutions for all screening requirements. From pre-employment to post-hire screening CriminalBackgroundRecords.com provides background screening services across a broad array of industries. From the smallest organization to the largest corporation, CriminalBackgroundRecords.com can fulfill every background screening requirement.

Notes:

(1) natlawreview.com/article/ban-box-updates-massachusetts
(2) lawandtheworkplace.com/2018/05/massachusetts-modifies-ban-the-box-law/
(3) laborandemploymentlawcounsel.com/2018/05/another-change-to-massachusetts-ban-the-box-law/

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