Prohibiting Questions about Criminal History on Initial Job Applications

The House General, Housing, and Military Affairs Committee took initial testimony the week before the Town Meeting break and is expected to try and pass out this week legislation, H.261, that would prohibit employers in most circumstances from including a question about criminal history on an initial job application. Exceptions would include jobs where federal or state laws or requirements prohibit employing someone with a criminal record. The legislation would not prohibit asking about criminal history in a subsequent interview or after they have been “deemed otherwise qualified for the position.”

The Attorney General’s Office is recommending amendments to the bill to delay the question further into the process (only at the later of either an interview or being deemed otherwise qualified), require that an application only ask about the specific types of offenses covered if based on federal or state laws or requirements, and prohibit and penalize “retaliation” against applicants “exercising his or her rights under this section.”

Some legislators have suggested adding additional restrictions on background checks.

Reaction by business groups has been mixed to the bill as introduced, although there is greater concern and even confusion over the AG’s recommendations. Heading into this week, however, it appears that the Committee leadership could be leaning toward adopting the AG’s recommendations.

Although there are many jobs where a criminal history is not necessarily an issue, and many employers – including a number of AIV members – have gone out of their way to employ individuals released from prison and seeking to reintegrate with society, AIV believes that the decision of whether a criminal history is relevant to employment decisions should be left to employers.

And if it is going to be a factor, it could be argued that it does not necessarily make sense to not address the matter up front. Of greater concern, however, are indications that there are serious risks of the prohibitions, restrictions, and penalties becoming increasingly extensive over time should this bill become law.

For these reasons, AIV will not be supporting this bill in our follow-up testimony this week. We encourage members to contact us with your views and suggestions, however, and to let us know if you are interested in engaging on this issue, at

To review the bill as introduced and related information, click here. To review the bill with amendments as recommended by the AG’s Office, click here.