Massachusetts ban-the-box law: 151B section 4(9) and the CORI rules

Massachusetts handles criminal history in two places. Chapter 151B, the anti-discrimination law, bars employers with six or more employees from asking about criminal records on the initial written application, and bars certain questions at any stage: non-conviction arrests, a first conviction for listed minor misdemeanors, most misdemeanors more than three years old, and sealed or expunged records. The CORI law in chapter 6 adds a procedure: if you have the candidate's criminal history, give them a copy before you question them about it, and again with any adverse decision. Employers that run five or more checks a year also need a written CORI policy.

The statutes

Chapter 151B, section 4(9 1/2): the initial application

Section 4(9 1/2) makes it unlawful "for an employer to request on its initial written application form criminal offender record information." The exceptions: an employer may ask about convictions on the application if the applicant is applying for a position for which a federal or state law or regulation "creates mandatory or presumptive disqualification" based on a conviction, or if the employer or an affiliate is legally obliged not to employ people with certain convictions in one or more positions. Even then, the section 4(9) limits still apply.

Chapter 151B, section 4(9): questions barred at every stage

Section 4(9) applies to an employer "himself or through his agent," in connection with an application or any other employment matter. It bars requesting information, keeping a record of it, using an application form that requests it, or penalizing someone for not providing it, regarding:

1. "an arrest, detention, or disposition regarding any violation of law in which no conviction resulted";
2. a first conviction for drunkenness, simple assault, speeding, minor traffic violations, affray or disturbance of the peace;
3. any misdemeanor conviction where the conviction, or the end of any resulting incarceration, whichever is later, was three or more years before the application, unless the person has been convicted of any offense in the three years before the application; or
4. a criminal record, or anything related to one, that has been sealed or expunged under chapter 276.

The section adds that no one is guilty of perjury or a false statement for not reciting information they have a right to withhold. Note the words "make or keep a record": writing a volunteered arrest into interview notes is itself within the prohibition.

Chapter 6, section 171A: the CORI copy rule

Section 171A says that in any employment decision, "a person in possession of an applicant's criminal offender record information shall provide the applicant with the criminal history record in the person's possession, whether obtained from the department or any other source prior to questioning the applicant about his criminal history." If the person then makes an adverse decision based on criminal history, they must provide the record again, unless they already gave it before questioning.

A person who "annually conducts 5 or more criminal background investigations" must keep a written CORI policy that provides it will (i) notify the applicant of a potential adverse decision based on the record, (ii) give the applicant a copy of the record and the policy, and (iii) give information on how to correct a criminal record.

Who is covered

• Chapter 151B: section 1(5) excludes "any employer with fewer than six persons in his employ," and certain non-profit social clubs and fraternal organizations. Section 1(2) defines an employment agency as "any person undertaking to procure employees or opportunities to work."
• Section 171A: applies to any "person in possession" of the applicant's record, with no size threshold in the text. The written policy duty turns on running five or more background investigations a year.

When the question may be asked

Because the categories in 4(9) are detailed and depend on dates, a recruiter cannot reliably ask a "safe" conviction question in a live screen. The practical answer is the same as in stricter states: leave criminal history to the employer's background process, where someone can apply the categories to the actual record.

Staffing agencies and recruiters

Section 4(9) applies to an employer acting "himself or through his agent," so a recruiter asking a barred question for a client is within it. Section 171A attaches to whoever is "in possession" of the record, which can be an agency that ordered the check. Agree in writing which party holds the record, gives the copy before any questioning, and maintains the written CORI policy.

Penalties and enforcement

Chapter 151B violations are handled through the Massachusetts Commission Against Discrimination's complaint process and the remedies available under that chapter; we did not verify a fixed penalty amount for these subsections. Under section 171A, failing to provide the criminal history information "may subject the offending person to investigation, hearing and sanctions by the board." Section 171A also says it does not itself prohibit an adverse decision based on criminal history. We did not check local ordinances for this page.

How it fits with FCRA adverse action

When a screening company supplies the report, the FCRA steps apply on top of the CORI rules: stand-alone disclosure and authorization before the check, a pre-adverse action notice with the report and the summary of rights, a reasonable wait, and a final notice. The section 171A copy and the FCRA pre-adverse action copy can be the same delivery if it happens before any questioning, and the CORI policy steps can be built into the same notice. See the FCRA background check process and background check notification emails.

Questions to settle with a Massachusetts client at intake

• Does the client employ six or more people?
• Does a federal or state law create a mandatory or presumptive disqualification for this position, so that 4(9 1/2) allows a conviction question on the application?
• Who will hold any criminal record, and who gives the candidate a copy before questioning?
• Does the client, or your agency, run five or more background checks a year, and where is the written CORI policy?

A script for Massachusetts screens

Candidate volunteers an old arrest or a sealed case: "You don't need to tell me about that, and it's not something we can consider or keep a record of. Let's go back to the role." Then write nothing down.

Hiring manager wants you to ask about convictions on the screen: "Massachusetts bars several categories at every stage, and if we have a report we have to give the candidate a copy before asking about it. That needs to sit in the background check process, not my screen."

Candidate asks what a check will cover: "If there is one, you'd get a copy of anything the employer has before they ask you about it, and a copy of their policy if there's an adverse decision."

A Massachusetts checklist for recruiting desks

1. Remove criminal record questions from initial written and online applications, unless a documented 4(9 1/2) exception applies.
2. Train screeners on the 4(9) categories and keep criminal history out of screens altogether.
3. Never record non-conviction arrests, listed first misdemeanors, older misdemeanors or sealed records. See what not to write in interview notes.
4. If you run five or more checks a year, keep a written CORI policy with the three required elements.
5. Give the candidate a copy of any record you hold before anyone questions them about it.
6. For federal guidance and general scripts, see ban-the-box laws and interview questions.