Question

One of our employees came to HR and told us that a coworker appears on the Massachusetts Sex Offender Registry. We had no previous knowledge of this information, and the employee has worked here without any known performance or conduct issues. Can we terminate the employee based on what we learned?

Answer

This is the type of situation where HR should avoid making an immediate decision and instead take time to verify the information and determine whether it connects to the employee’s job.

First, verify the reported information. Confirm the identity of the offender to be sure it is your employee. Review the level and nature of the offense, the date of the offense, and whether the registration is current.

Next, evaluate whether the registration disqualifies the employee from employment. If there is a statute or regulation that makes the employee ineligible for this particular position, the company has a clear basis for ending employment.

Other employees’ concerns, by themselves, may not be enough. Without a legal or job-related reason to terminate, coworker concerns alone may not support ending the employment.

What Does Massachusetts Law Require Before Acting on Criminal History?

Massachusetts law (MGL ch. 171A) requires employers to follow a specific process before making an adverse employment decision based on criminal history. Employers should provide the employee with a copy of the criminal record, whether the information came from a background check or “any other source.”

Before making a decision, the employer should also give the employee an opportunity to respond. This may include asking about the conviction, such as what the offense was, when it occurred, and whether there have been any subsequent criminal charges.

From there, the employer should consider how the information relates to the employee’s role and work history. Questions to consider include:

• Would the employer have hired this employee had it known of the record?
• Has the employee worked for the employer for a significant length of time? If so, have there been any concerns about performance or behavior?

The key is to make the decision based on the facts, the position’s requirements, and the employee’s actual work history, rather than reacting only to registry information.

Where Can Employers Find More Information?

• Massachusetts Sex Offender Registry Board: Employers can use the state’s Sex Offender Registry resources to verify available registry information and learn more about offender classifications. Massachusetts Government
  Massachusetts Sex Offender Registry Information
• Massachusetts General Laws, Chapter 6, Section 171A: This law addresses employer responsibilities when criminal-history information is used in an employment decision, including information obtained from sources other than CORI. Massachusetts General Court
  Read M.G.L. c. 6, § 171A
• Massachusetts Commission Against Discrimination – Criminal Record Discrimination in the Workplace: Provides an overview of what Massachusetts employers may and may not ask about or consider regarding an applicant’s or employee’s criminal record. Massachusetts Government
  Criminal Record Discrimination in the Workplace

Need Help Navigating a Difficult Employee Situation?

Employment decisions involving criminal history can raise questions about compliance, company policy, and the specific circumstances of an employee’s role.

AIM HR Helpline can help employers think through challenging workplace situations and determine appropriate next steps. Contact the AIM HR Solutions Employer Helpline at 617-488-8321.

In addition, AIM HR Solutions also offers background check services.