Employers are usually interested in discovering pertinent information about potential employees. However, Massachusetts law puts restrictions on the type of information a potential employer can inquire about, and in what circumstances that inquiry can be made.
Perhaps the most important is an inquiry about a person’s criminal record. Employers do not want to hire a person that may make them liable for negligent hiring or retention of an employee. While employers may request information regarding some criminal activity, they are prohibited by statute from requesting that information directly from the potential employee. Specifically:
- An employer may not inquire about an arrest, detention or disposition regarding any violation of law in which no conviction resulted.
- An employer may not request information regarding a first conviction for drunkenness, simple assault, speeding, minor traffic violations or disturbance of the peace.
- An employer may not inquire about any conviction of a misdemeanor that occurred five years prior to the application for employment.
- An employer also may not take any adverse action against a potential employee for failure to provide such information.
While employers are prohibited from asking a potential employee directly, case law discussing the statute suggests that potential employers may obtain this information from other sources. Access to this information may be limited to some employers, depending on the nature of their business.
If you are an employer looking to acquire necessary information to make a hiring decision while respecting the boundaries of the law, or if you are an employee who believes your rights have been violated, consult an attorney today.