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Boston, Massachusetts 02108-3002

Phone: (617) 720-2444
Fax: (617) 720-3693

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Can Employers Uncover An Employee’s Criminal Records?

Wednesday, March 09, 2016

By: Scott M. Zanolli

When one considers the phrase “sealed record,” what words or phrases come to mind? Airtight?  Impenetrable?  While records should remain sealed to an employer who may file a Criminal Offender Record Information (CORI) request as part of a background check on a potential employee, neither word accurately describes the working definition for sealed records under Massachusetts law (M.G.L. Chap. 276, § 100A). Even after a record is officially “sealed,” there are certain government agencies that can always access criminal records.  For example criminal justice agencies, firearms licensing authorities, and some government agencies that work with children may still obtain all CORI records.

The general rule in Massachusetts is that someone wishing to seal a criminal record can petition the state Commissioner of Probation after a waiting period of five years for a misdemeanor conviction or after a waiting period of ten years for a felony conviction.  The clock resets, however, if the petitioner is convicted of another misdemeanor or felony during that waiting period (in Massachusetts or in another state). And the waiting period starts the date the petitioner is found guilty OR completes a period of incarceration – whichever date is later.

Some other twists and turns:

  • A judge can seal a case before the waiting period runs;
  • Courts can also seal dismissed cases or cases where the prosecutor dropped the case (nolle prosequi) or cases that ended up with a finding of not guilty;
  • If a case is continued without a finding (CWOF), the waiting period commences on the date of the CWOF, not the later date set by the court for the final dismissal;
  • Some charges come with longer waiting periods, such as restraining order violations.
  • Some misdemeanors are treated as felonies when it comes to the waiting period and carry the ten year waiting period, not the five year standard;
  • Sex offense convictions carry longer waiting periods before a record can be sealed (if indeed it can be sealed). Any conviction for a sex offense that results in having to register with the Sex Offender Registry is not even eligible for consideration for sealing until 15 years after the conclusion of the case, including release from incarceration and the end of supervision and probation;
  • And then there are convictions where a record can never be sealed. These are Level 2 and Level 3 sex offenses and certain firearm-related convictions.

Pierce & Mandell attorneys routinely represent employers and employees in matters involving CORI requests, sealed records, and other regulatory issues impacting the employer-employee relationship.  Visit us at www.piercemandell.com or contact Scott Zanolli at scott@piercemandell.com.

The Facts About Pregnancy Related Employment Discrimination

Thursday, January 31, 2013
By: Michael C. Fee

It is unlawful for an employer to terminate a pregnant female’s employment, or to take any other adverse employment action against the employee, on account of pregnancy.  Under Federal law, The Pregnancy Discrimination Act amended Title VII of the Civil Rights Act of 1964, and provides that discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination.  The law covers employers with 15 or more employees, and mandates that women who are pregnant or affected by pregnancy-related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.

Some examples:

  • An employer cannot refuse to hire a pregnant woman because of her pregnancy, or because of the prejudices of co-workers, or customers.
  • An employer may not single out pregnancy-related conditions for special procedures to determine an employee's ability to work.
  • If an employee is temporarily unable to perform her job because of her pregnancy, the employer must treat her the same as any other temporarily disabled employee.
  • Pregnant employees must be permitted to work as long as they are able to perform their jobs.
  • Employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave.
  • Any health insurance provided by an employer must cover expenses for pregnancy-related conditions on the same basis as costs for other medical conditions.
  • Employers must provide the same level of health benefits for spouses of male employees as they do for spouses of female employees.
  • Pregnancy-related benefits cannot be limited to married employees.
  • Employees on leave because of pregnancy-related conditions must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits.

In Massachusetts General Law Chapter 151B, sec. 4 makes it an unlawful practice to discharge an employee because of her sex. “Pregnancy and childbirth are sex-linked characteristics and any actions of an employer which unduly burden an employee because of her pregnancy or the requirement of a maternity leave are considered sex discrimination.” School Committee of Braintree v. MCAD, 377 Mass. 424, 430 (1979); Gowen-Esdaile v. Franklin Publishing Co., 6 MDLR 1258 (1984) (termination of complainant during troubled pregnancy because of fears of further absences deemed unlawful sex discrimination).
Claims for pregnancy related employment discrimination are often brought in the Massachusetts Commission Against Discrimination, or MCAD, where a complainant must establish a prima facie case by demonstrating that (i) she was a member of a protected class (i.e. pregnant); (ii) she was performing her job at an acceptable level; (iii) she was terminated from her employment or otherwise subject to an adverse employment action; and (iv) her employer sought to fill the position by hiring another individual with similar qualifications, or that complainant’s termination occurred in circumstances that would raise a reasonable inference of discrimination.  Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 116 (2000); Wynn & Wynn v. MCAD, 431 Mass. 655, 665 (2000); Weber v. Community Teamwork Inc., 434 Mass. 761 (2001); and Sullivan v. Liberty Mutual Ins. Co., 444 Mass. 34 (2005).
If you are an employee or employer with questions about your rights or obligations under state and federal laws that prohibit employment discrimination on the basis of pregnancy, contact the Pierce & Mandell employment litigation team.

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