Massachusetts — Hiring & Onboarding

Massachusetts employers are prohibited from requesting criminal offender record information on an initial written job application, subject to narrow exceptions. This "ban the box" rule applies to all employers covered by M.G.L. c. 151B (generally employers with six or more employees, plus government employers). An employer may inquire about criminal convictions on the initial application only if (i) federal or state law creates a mandatory or presumptive disqualification for the position based on specific criminal offenses, or (ii) the employer is subject to a legal obligation not to employ persons convicted of specific offenses. Employers may ask about criminal history later in the hiring process (during or after an interview), but at all stages are prohibited from asking about arrests that did not result in conviction, sealed or expunged records, first convictions for certain minor misdemeanors (drunkenness, simple assault, speeding, minor traffic violations, affray, disturbance of the peace), and misdemeanor convictions more than three years old (unless the applicant has been convicted of another offense in that three-year period).

Source: M.G.L. c. 151B, §§ 4(9), 4(9½)

Massachusetts employers must report newly hired employees and independent contractors to the Department of Revenue (DOR) within 14 days of the employee's or independent contractor's first day of work. This obligation arises under M.G.L. c. 62E, § 2 and applies to all employers and payors of income regardless of the number of employees or independent contractors they employ — there is no small-employer exemption. The requirement also covers employees who return to work following a lapse in pay of 30 days or more due to termination, separation, layoff, or requested leave of absence without pay; for these reinstatements, the 14-day clock runs from the effective date of reinstatement.

Who must be reported. Employers must report both employees (as defined in Internal Revenue Code § 3401(c)) and independent contractors who reside or are employed in Massachusetts. The new hire reporting obligation is distinct from quarterly wage reporting; the data elements and timing differ. An employee or independent contractor is deemed to have an effective date of employment (or reinstatement) no later than the first day for which the individual is eligible for compensation. If an employer has a probation period before an employee is officially hired but the employee is paid during the probation period, the employer must report the new hire within 14 days of the first day of work, regardless of the probation period.

Required data elements. The report must include the employer's federal employer identification number (FEIN), legal name, and payroll address; and the new hire's or independent contractor's full name, mailing address, Social Security number, work status (employee or independent contractor), and the date of first day of employment or reinstatement. Employers cannot substitute an Individual Taxpayer Identification Number or Resident Alien (green card) number in place of the SSN. On or before the effective date of employment or reinstatement, an employee or independent contractor must provide to the employer this identifying information.

Electronic filing mandate for larger employers. Employers with 25 or more employees or independent contractors in the aggregate must file new hire reports electronically through MassTaxConnect, the DOR's online portal. If such an employer is unable to use electronic transmittal, it must cooperate with the Commissioner of Revenue to identify another means of transmittal, but the 14-day deadline remains unchanged. Employers with fewer than 25 employees or independent contractors may use Form NHR (the paper new hire reporting form) submitted by fax or mail, or they may file electronically; they too must cooperate with the Commissioner if unable to use the prescribed method. Payroll processing services that report 25 or more employees or independent contractors in the aggregate are also subject to the electronic filing requirement.

Multi-state employer election. Employers that have employees in Massachusetts and one or more other states may designate a single state to which they send all new hire reports, pursuant to 42 U.S.C. § 653a(b)(1)(B). Multi-state employers that elect to report to Massachusetts must comply with federal timing requirements (which allow transmission within 20 days of hire or two consecutive transmissions not less than 12 nor more than 16 days apart) as well as the Massachusetts data and format requirements.

Penalties. Failure to report a new hire or reporting inaccurate information may result in a penalty of up to $25 per employee, independent contractor, or other recipient of periodic payments who is not reported or is inaccurately reported. If the failure or inaccurate reporting is the result of a conspiracy (agreement) between the employer and the employee or independent contractor not to report or to report inaccurate information, the penalty is $500 per individual. The DOR uses new hire reporting data primarily for child support enforcement (to locate parents owing support and to establish or enforce support orders) and secondarily to prevent fraud in financial assistance programs, including unemployment insurance fraud detection.

Source: M.G.L. c. 62E, § 2; 830 CMR 62E.2.1; Mass.gov New Hire Reporting page