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This Massachusetts Human Resources Manual is offered to you for free. Find state specific laws and regulations below.

Background checks — Massachusetts


A background check is a valuable way for an employer to determine whether an applicant is an appropriate fit for a position. By researching an applicant’s background, an employer may discover that the applicant has relevant skills and experience or, alternatively, may uncover an applicant’s history of poor performance. One key benefit to an employer of thoroughly checking an applicant’s background is protection from liability associated with negligent hiring and retention claims.

An employer may use many different methods to check an applicant’s background, however, some methods require an employer to comply with disclosure and authorization requirements. Depending on the nature of the position in question, an employer may choose to use one or all of the following forms of investigation.

Reference checks

A reference check is one of the easiest ways to learn the nature of an applicant’s qualifications. To be thorough, an employer should request that the applicant identify both character references and previous employer references. The employer should contact all of the applicant’s references. 

Although the law does not require a written authorization to conduct a reference check, the employer should consider obtaining one to protect itself from potential claims. An employer may also want to request a waiver from the applicant to release former employers and the requesting employer from any claims relating to the reference check. With a waiver in place, former employers may provide more detailed information about an applicant than they would otherwise. 

When an employer contacts an applicant’s reference, it should request information such as:

  • dates of employment
  • previous job duties
  • performance evaluations
  • wage history
  • disciplinary record
  • tendency for violence
  • circumstances surrounding departure
  • eligibility for rehire.

Although a former employer may not be willing to disclose information on all of these topics, the prospective employer defends itself against negligent hiring and retention claims by asking appropriate questions and recording the responses. An employer should also use the applicant’s completed application as a resource in its discussion with the reference.

A prospective employer should take careful notes during its discussion with an applicant’s reference. It should also document all unsuccessful attempts to contact references.

Internet checks

One of the easiest ways to learn about an applicant is to enter the applicant’s name in Google or a similar Internet search engine. The law does not require an employer to obtain the consent of a potential employee to conduct its own Internet search. An employer may learn helpful information about an applicant that sheds light on whether she or he is a fit for the position.

However, employers should be very careful when conducting Internet searches and relying upon information disclosed on the Internet. First, if an employer learns any information concerning the applicant’s protected class status (such as disability, race/national origin, age, etc.), the applicant may later claim that the employer failed to hire him or her because of that information. For obvious reasons, an employer should not use the information it learns from the Internet to make discriminatory employment decisions.

Second, an employer must be cautious in relying on information from the Internet. Websites or other individuals may post inaccurate information about an applicant. To the extent that an employer uses information that it learns from the Internet in making employment decisions, it should do so only in conjunction with other more reliable sources of information.

When criminal record checks are appropriate

In August 2010, the Massachusetts legislature passed a law that substantially changed the requirements governing criminal record checks in Massachusetts. On October 13, 2018, the legislature amended the law to further limit the use of criminal record checks. Employers would be well advised to seek legal counsel before conducting such checks.

In May 2012, the state rolled out a new criminal record database, iCORI, which is available to all employers. Once an employer has registered, it may access iCORI records for any individual who has signed an acknowledgment form. Employers must retain the acknowledgment forms for at least one year from the date of the iCORI request and may not retain iCORI records for more than seven years after an employee’s last date of employment or the date of the decision not to hire an applicant.

In addition, an employer who seeks criminal records – from iCORI or otherwise – should be aware of the following new protections and limitations concerning criminal record checks:

  • An employer may not inquire about applicants’ criminal backgrounds on its initial written application. Employers may, however, inquire about some types of criminal offender information later in the job application process, with some limitations as described below.
  • Employers may obtain some information about convictions, but the information is only accessible for 10 years for felony convictions and three years for misdemeanor convictions.
  • Any misdemeanor in which the date of conviction or completion of incarceration occurred three years or more before the date of the job application, unless the person was convicted of a crime within the three years prior to the employer's inquiry. 
  • Employers may not ask applicants (orally or in writing) about any sealed or expunged criminal records. Further, employers requesting criminal records information must include the following language on any requests provided to applications: 

An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer "no record" with respect to any inquiry herein relative to prior arrests, criminal court appearances or convictions. An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer "no record" to an inquiry herein relative to prior arrests, criminal court appearances, juvenile court appearances, adjudications or convictions..

  • Before questioning an applicant about his or her criminal record or making adverse employment decisions based on the record, the employer must provide the applicant with a copy of the record – regardless of the source from which it was obtained.
  • An employer who conducts five or more criminal background checks, regardless of the source from which it obtains the information, must maintain a written Criminal Offender Record Information (CORI) policy. The CORI policy must, at a minimum, require the employer to notify applicants of the potential for an adverse decision based on criminal record information. It must also require the employer to provide a copy of the criminal history record to the applicant or employee, as well as the policy and information concerning how to correct criminal records with the state and credit reporting agencies.
  • Many employers will be shielded from negligent or discriminatory hiring claims or if they rely on criminal records to make an adverse employment decision, so long as the employment decision is made within 90 days of obtaining the records. In addition, in a negligent hiring claim, an employer is presumed not to have notice of records:
    • that have been sealed or expunged
    • about which employers may not inquire under Massachusetts anti-discrimination laws
    • concerning crimes that the Department of Criminal Justice Information Services may not lawfully disclose to an employer.
  • CORI may only be shared with individuals within the employer’s business with a need to know the information. In addition, employers must maintain a dissemination log for a period of one year following the dissemination of an individual’s CORI outside of the employer’s organization.
  • The law applies to applicants for volunteer positions, as well as applicants for paid positions.

Massachusetts law remains unchanged concerning criminal record information that an employer may never require an applicant or employee to disclose to it. This information includes the following:

  • An arrest, detention, or disposition regarding any violation of law in which no conviction resulted.
  • A first conviction for any of the following misdemeanors:
    • drunkenness
    • simple assault
    • speeding
    • minor traffic violations
    • affray
    • disturbance of the peace.

Conducting driving record checks

For positions that would require the use of a company vehicle, an employer may want to review the driving records of applicants. An employer should check an applicant’s driving records before hire, and then periodically throughout employment. When checking the driving record of an applicant, the employer should confirm that the applicant has a valid driver’s license and review any driving violations. 

An employer must tread carefully when it makes decisions based on an applicant’s driving record information. Under the Americans with Disabilities Act (ADA), alcohol-related convictions may not be used to discriminate against an applicant who the employer perceives to be an alcoholic. Also, as discussed below, if the employer uses a third-party, consumer-reporting agency to obtain this information, it must comply with the Federal and Massachusetts Fair Credit Reporting Act (FCRA).

Credit checks

Subject to certain notice and disclosure requirements, an employer may obtain credit checks of its employees or applicants. However, the Equal Employment Opportunity Commission (EEOC) has stated that credit checks may have an adverse impact on minorities. Therefore, an employer may want to limit the use of credit checks to positions for which there is a legitimate business necessity. For instance, a credit check for a restaurant cook who has no financial responsibilities would be inappropriate, but a credit check for a controller or accounts payable clerk may be reasonable. When an employer does choose to run a credit check on an applicant, the employer should apply the credit check uniformly to all applicants for the position. Typically, credit reports may only be obtained through third-party entities that prepare such reports for a fee. 

Consumer reports

The federal Fair Credit Reporting Act (FCRA) and Massachusetts law detail several requirements for employers that use consumer reports to make employment-related hiring, promotion, and termination decisions. The term “consumer report” is defined very broadly by the FCRA and state law to include any written, oral, or other communication from a consumer reporting agency bearing upon a consumer’s credit worthiness, standing, credit capacity, character, reputation, personal characteristics, or mode of living. It includes communications regarding motor vehicle history, criminal background, bankruptcy, and medical and credit history records that are used to assess an individual’s qualifications for employment. The FCRA and state law only apply to consumer reports that are generated by a consumer reporting agency; it does not apply to an employer’s own reference checks such as its contact with an applicant’s former employers or its review of public records or documents.

An employer that fails to follow the requirements of the FCRA or state law may be liable for civil fines or damages, and may face criminal prosecution.

To comply with the FCRA or state law, an employer should institute the following standard procedures:

  • have an employment purpose for obtaining the consumer report (that is, the report must be used to evaluate a consumer for employment, promotion, reassignment or retention)
  • give the individual written notice of the employer’s intention to obtain a consumer report in a document that consists solely of the notice
  • obtain written consent from the individual
  • certify to the consumer reporting agency from which the employer obtains the consumer report that it has complied with all applicable provisions of the FCRA.

Guidance from the Federal Trade Commission states that an employer may combine the written notice and consent in a single form; however, no other language should be included on the form. The form on the following page is a sample authorization to obtain information from a consumer reporting agency according to the FCRA.

Adverse action

Before taking any adverse action against an employee (such as declining to hire, promote, or retain the employee) based on information from a consumer report, the employer must first:

  • provide a copy of the consumer report to the applicant or employee
  • provide a copy of the “Summary Of Your Rights Under The Fair Credit Reporting Act” to the applicant or employee found at:
  • wait at least five business days to give the applicant or employee the opportunity to dispute the accuracy of the reported information.

After taking any adverse action based in whole or in part on information from a consumer report, the employer must provide the following oral, written, or electronic notices to the individual:

  • the fact that the adverse action has been taken
  • a name, address, and toll-free phone number of the consumer reporting agency that provided the consumer report
  • notification that the consumer reporting agency played no part in the adverse employment action
  • notification that the individual has the right to a free copy of the consumer report from the consumer reporting agency if the request is made within 60 days from the date the action is taken
  • notification that the individual has the right to dispute the accuracy or completeness of the consumer report with the consumer reporting agency.

The form labeled Sample FCRA Adverse Employment Action Letter under the files tap at the top is a sample letter that should be provided to applicants and/or employees who are subject to adverse employment action based on a consumer report.