Most people know that when they apply for a job, a potential employer cannot refuse to hire you based upon a discrimination, such as due to your race, gender or religion. However, what many people are not aware of is that arrests or prosecution for criminal charges that don't lead to a conviction are not factors an employer can use against an applicant or factors that can be sued to terminate an employee’s job. If an employer does use this information, or asks questions about criminal charges that did not lead to a conviction and takes adverse action it may be deeded a failure to hire or wrongful termination. In fact, the Massachusetts Commission Against Discrimination classifies this type of conduct as employment discrimination on the basis of a criminal record pursuant to the Massachusetts General Laws, Chapter 151B, §4 and 804 CMR 3.01.
Under the applicable employment discrimination statutes, it is unlawful for an employer to ask certain questions about a job applicant's or employee's criminal record. More specifically, Employers may not ask about, maintain a record of, or base any employment decision on the following information if they have requested it:
- Arrests or prosecution that did not lead to a conviction
- A first conviction for drunkenness, simple assault, speeding, minor traffic violations, or disturbance of the peace
- Misdemeanors where the date of conviction or the end of any period of incarceration was more than five years ago, provided that there have been no subsequent convictions within those five years
- Any record of a court appearance which has been sealed under state law
- Anything pertaining to juvenile record, including delinquency and child in need of services complaints, unless the juvenile was tried as an adult in Superior Court