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Criminal Histories Fair Game for Employment Decisions

July 29, 2018
by Rich Loftus, Esq.
Hirsch Roberts Weinstein
May an employer refuse to hire someone, or terminate an employee, after learning about the individual’s criminal history or arrest from a source other than the employee?
The answer is typically “yes.”
Although Massachusetts employers are limited in how they can ask about an employee’s criminal history, they are not similarly constrained against making employment decisions based on that history if obtained from a source other than the employee. In Massachusetts, it is an unlawful practice:
[f]or an Employer . . . in connection with an application of employment, or the terms, conditions, or privileges of employment . . . to request any information, make and keep a record of 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 [arrests where no conviction resulted, first convictions for certain misdemeanors, or misdemeanor convictions with a conviction/jail release date older than five years]. M.G.L. c. 151B § 4(9).  
Notably, the statute does not make it unlawful to “exclude, limit or otherwise discriminate against” a person because they have a criminal history in the specific categories listed above, but only because the employee fails to furnish that history.  In other words, it is unlawful for an employer to retaliate against someone who did not answer an already-unlawful question, but not to take action based on the information itself so long as it was obtained legally.   
So, an employer may not ask about a person’s criminal history on his or her initial application pursuant to M.G.L. c. 151b § 4(9½)  (i.e. ban the box). But after making an offer to an applicant, the employer may ask an employee to fill out a Criminal Offender Record Information (CORI) form when it is “job-related and consistent with business necessity.”  There are additional requirements that apply if and when an applicant is rejected based on a CORI check. 
Employers may learn a great deal about employees outside of their application forms, CORI forms, and responses to interview questions.  For example, the employees may volunteer criminal history themselves, it may come from references, or it may come from a simple internet search.  
What can an employer do if it finds out about an employee’s criminal history through a means not prohibited by statute?
If the derogatory information negatively affects the employee’s ability to do the job or threatens to harm the employer’s reputation, then the employer may either refuse to hire or terminate the employee.  Under both federal and state law, having a criminal record does not put someone in a protected class, and so the normal presumption of at-will employment applies.  Massachusetts courts have held that employers may lawfully seek out an employee’s criminal history in an appropriate way, such as a CORI request, and may act on that information as they see fit.
For an example close to home, recall the situation of Aaron Hernandez.  The New England Patriots were well within their rights in releasing the tight end because he was arrested for murder.  The team did not ask Hernandez a forbidden question under 151B (the Massachusetts anti-discrimination law) and did not use a third-party investigative agency to compile a criminal background report.
The Patriots merely acquired information that was freely available and made a business decision based on that information.  Just as the Patriots can terminate employees who are arrested for crimes, you as an employer may make a decision to reject an applicant because you think his or her criminal record makes the person unable to perform the duties of the position, so long as you do not seek to compel the applicant or employee to provide information prohibited under 151B and comply with any applicable CORI check requirements.  
Employers should be aware, however, that having a blanket policy of not hiring employees with criminal records, or criminal records of a certain type, may still lead to a claim of discrimination if that policy has a disparate impact on one or more protected classes.
In addition, employers should keep in mind that hiring people with criminal records can help to reduce recidivism rates and support a criminal justice model based on rehabilitation and not retribution.  These positive effects suggest that employers should consider applicants with criminal records on a case-by-case basis for appropriate positions and in accordance with other regulations.   
In conclusion, when it comes to using information regarding a person’s criminal history, the Massachusetts criminal records statute only limits how an employer can ask an employee about his or her criminal history.  It does not limit employers’ discretion in using freely available facts to make the best decision for their own businesses.
Contact the AIM Employer Hotline at 800-470-6277 if you have questions about this or any other HR- related matter.
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