Employment Discrimination Based on Criminal History
The legal protections relating to background checks in MassachusettsBy Judy Malmon, J.D. | Last updated on January 20, 2023
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Pursuant to Massachusetts state law, if you’re convicted of a crime, that information may be used by a current or potential employer in making employment decisions during the hiring process. In most cases, however, you can have the record of your conviction sealed after a designated period of time—allowing a fresh start for employment applications. Once your record has been officially sealed, any hiring or firing decision based on a criminal conviction is illegal. Boston employment attorney Philip Gordon explains that under Massachusetts law, an employer may not base an employment decision on arrest records of job applicants that did not result in conviction, nor on a sealed conviction record. This used to be more straightforward than it is today, due to the availability of criminal history information on the internet. “You can often find older criminal information on websites,” says Gordon. “The official system may not produce a criminal history record because it has been sealed, but you don’t need to do a background check—just Google them; you can do it in five minutes, for free. But under the law, if it’s sealed, it can’t be used as the basis for an employment decision.” Where your record is not sealed, it’s not uncommon for an employer to base a decision on your criminal history when making hiring decisions. When this occurs, however, the record might be incorrect. “There are lots of records that are wrong,” Gordon says. “There might be an arrest that’s still there and shouldn’t be, or a misdemeanor criminal offense that was written up as a felony conviction, a record that belongs to someone with a similar name, or all sorts of errors in a person’s background check information.”
How You’re Protected from Background ChecksCriminal background checks trigger protections under the federal Fair Credit Reporting Act (FCRA). “Background checks are considered consumer reports for the purposes of FCRA and the Massachusetts Credit Reporting Act,” says Gordon. The FCRA requires a number of notifications and steps before adverse action may be taken, which Gordon summarizes as comprising “what they call the two-step—a two-step adverse action process”:
- The employee or applicant must be provided a copy of the background check report relied upon.
- The employer must provide a copy of the summary of rights under FCRA, as well as the name, address and phone number of the screening company that did the report.
- The employee or applicant must be advised of their right to dispute the report, and provided a reasonable period of time to respond before the employer takes an adverse action. (In 1997, Gordon notes, the FTC ruled that five days was “reasonable.”)
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