Massachusetts: Asking About Voluntarily Disclosed Arrest Records Violates Non-Discrimination Laws

By Kayla E. Snider - Skoler Abbott P.C.

October 3, 2024

As you may already know, Massachusetts law prohibits employers from directly asking a prospective or current employee about an arrest that it learns about through an outside source. But what if that prospective or current employee tells you about an arrest themselves, is it okay to ask them about it then?

Last week, a Massachusetts federal judge issued a decision regarding employers’ inquiry into the arrest records of prospective employees. The Court answered the question of whether an employer can inquire about an arrest that did not result in a conviction when a prospective employee voluntarily discloses the arrest on their application. The Court answered this question in the negative, concluding that it was a violation of the Massachusetts non-discrimination laws to ask the applicant for additional information about the arrest.

Prospective firefighter rejected after disclosing domestic assault arrest on application form

In August 2019, a would-be firefighter submitted an employment application with the Fire Department in Everett, Massachusetts. On the form, he disclosed that he was charged with assaulting his former girlfriend in 2011 and that the charge was ultimately dismissed. He also listed the former girlfriend as a reference.

As a part of its application process, the Fire Department requested a background screening report for the applicant from an outside vendor, National P.I. Services, LLC. In its report, National P.I. confirmed that the applicant had been arrested and charged with assaulting his former girlfriend and violating a restraining order by police in Norfolk, Virginia, and that the charges were ultimately dismissed.

In preparing its report, National P.I. spoke with both the applicant and his former girlfriend in September 2019. National P.I. reported to the Fire Department that she recalled the incident; he claimed that he was never arrested.

In March 2021, the Fire Department decided against hiring the applicant, relying in part on his denial of the arrest that he himself had voluntarily disclosed on his application form.

National P.I. found in violation of non-discrimination laws

The applicant filed a complaint against National P.I. alleging, among other things, that National P.I. violated Chapter 151B. Chapter 151B prohibits “discriminat[ion] 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.” Chapter 151B further prohibits “an employer, himself or through his agent, in connection with an application for employment” from requesting any information regarding an arrest that did not result in a conviction.

No one disputed that National P.I. was acting as an agent of the Fire Department, or that National P.I. did ask the applicant about the circumstances of his 2011 arrest during their interview with him. But National P.I. nonetheless denied violating the law, arguing that they discovered the circumstances of the arrest during their conversation with the applicant’s former girlfriend and that, in any event, he waived his rights under Chapter 151B when he disclosed the arrest on his employment application and listed his former girlfriend as a reference.

The Court summarily rejected National P.I.’s second argument, finding that National P.I. provided no legal support for its waiver argument.

Instead, the Court focused on National P.I.’s first argument. The judge agreed that National P.I. did not violate Chapter 151B when it asked the former girlfriend about the applicant’s arrest or when it ran other criminal background checks on him. However, the Court did find that National P.I. violated Chapter 151B when it asked the applicant for additional information about the arrest during his interview. Further, the Court pointed out that the applicant’s denials about being arrested contributed to the Fire Department’s decision not to hire him.

Takeaways

The case, Meuse v. National P.I. Services, LLC, is important for employers to keep in mind when they find out about arrests for either prospective employees or current employees. While Chapter 151B does not prohibit employers from seeking information about the arrest of either a prospective or current employee from outside sources, questioning a prospective or current employee about an arrest could violate the law—especially if that arrest becomes the motivating factor for terminating a current employee or deciding not to offer employment to a prospective employee.

If you have any questions about obtaining or using criminal history information in the hiring process, consider contacting experienced labor and employment counsel.

www.skoler-abbott.com