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EMPLOYMENT LAW GUIDE: - page 103 / 134

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Exhibit H

Massachusetts Commission Against Discrimination

FACT SHEET: EMPLOYMENT DISCRIMINATION ON THE BASIS OF CRIMINAL RECORD

Massachusetts General Laws Chapter 151B, Section 4; 804 CMR 3.01

It is illegal for an employer to ask certain questions about a job applicant's or employee's criminal record. 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, affray, 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.

An employer may not take action against an applicant or employee for answering an unlawful question untruthfully.

An employer may ask:

  • Have you ever been convicted of a felony?

  • Within the last five years have you been convicted of, or released from incarceration for a misdemeanor which was not a first offense for drunkenness, simple assault, speeding, a minor traffic violation, an affray, or disturbing the peace?

IT IS ALSO ILLEGAL FOR AN EMPLOYER TO REQUEST FROM AN APPLICANT OR EMPLOYEE A COPY OF A PROBATION OR ARREST RECORD,* OR TO ASK AN APPLICANT OR EMPLOYEE TO SIGN A RELEASE PERMITTING ACCESS TO SUCH INFORMATION.

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