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  1. #1
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    Default Criminal Record Discrimination

    Massachusetts: I need a second opinion on interpretation of this statute...


    M.G.L. Chapter 151b, Section 4

    "(9.) For an employer, himself or through his agent, in connection with an application for employment, or the terms, conditions, or privileges of employment, or the transfer, promotion, bonding, or discharge of any person, or in any other matter relating to the employment of any person, to request any information, to make or keep a record of such information, to use any form of application or application blank which requests such information, or to exclude, limit or otherwise discriminate against any person by reason of his or her failure to furnish such information through a written application or oral inquiry or otherwise regarding: (i) an arrest, detention, or disposition regarding any violation of law in which no conviction resulted, or (ii) a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace, or (iii) any conviction of a misdemeanor where the date of such conviction or the completion of any period of incarceration resulting therefrom, whichever date is later, occurred five or more years prior to the date of such application for employment or such request for information, unless such person has been convicted of any offense within five years immediately preceding the date of such application for employment or such request for information."

    Am I right in interpreting this statute as just applying to the hiring process? Or does this extend to cover you while you're employed? Can you be effectively terminated solely for getting arrested where there was no conviction? And if so, is this in violation of the statute?

  2. #2
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    Default Re: Criminal Record Discrimination

    Can you be effectively terminated solely for getting arrested where there was no conviction?
    Absent a binding employment contract or collective bargaining agreement, you can be terminated because your employer doesn't like the way you cut your hair.

    The statute appears to limit the information an employer may ask for during the hiring process, effectively prohibiting taking punitive action for any of the listed incidences if they happened more than five year prior to the date of application.

    Once you're hired, you can be fired for any reason not related to your gender, race, religion, age or physical handicap.

  3. #3
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    Default Re: Criminal Record Discrimination

    The statute on its face says that it applies to "the terms, conditions, or privileges of employment, or the transfer, promotion, bonding, or discharge of any person, or in any other matter relating to the employment of any person". Obviously that goes well beyond a hiring decision. The statute would be frustrated if you could ask for the information the moment you hired somebody, then fire them based upon information you weren't legally able to use in the hiring process.

  4. #4
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    Default Re: Criminal Record Discrimination

    According to Ferguson v. Host International, Inc 53 Mass App Ct 96 (2001), a simple employee handbook could be considered a contract. Therefore, at least in Mass, a CBA or contract may not even be needed to satisfy continued employement.

  5. #5
    Join Date
    Aug 2006
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    563

    Default Re: Criminal Record Discrimination

    Quote Quoting SNPJR
    View Post
    According to Ferguson v. Host International, Inc 53 Mass App Ct 96 (2001), a simple employee handbook could be considered a contract. Therefore, at least in Mass, a CBA or contract may not even be needed to satisfy continued employement.
    what if the handbook says "this handbook does not imply contract"

    and forget the aplication...those things come up in legal background checks sometimes anyway

  6. #6
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    Default Re: Criminal Record Discrimination

    That is also addressed in Ferguson "that certain provisions of an employee handbook in which the employer attempted to disclaim any intent to create a contract were the equivalent of "fine print." Based on this holding, the court concluded that the plaintiff, a former employee, could rely on the handbook as the basis of an employment contract. The plaintiffs' bar has viewed the decision as rejecting an employer's ability to disclaim any intent to create a contract through an employee handbook."

  7. #7
    Join Date
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    Default Re: Criminal Record Discrimination

    Is the above statute only applicable for the hiring process? And does it only protect from a person having to furnish information or from any type of inquiry into an arrest?

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