Legal Question in Employment Law in Massachusetts
I was recently hired as a registered nurse by a hospital in Massachusetts. Upon hiring they ran a background check through an independent background check company. I went on vacation from June 9-15, 2010. Upon returning home on June 16th, I had two letters at my house. One from the background reporting agency postmarked June 11th with my background report and a letter from the hospital/ background company stating I am ineligible for employment due to the fact that I was found to have a misdemeanor. They said I have 5 days to dispute the claim. I also received a letter from the hospital postmarked June 10th stating the same thing. I immediately called the hospital HR dept. on June 16th and explained I had been on vacation and was just receiving all this mail. I asked what I could do to dispute it. They said follow the instructions sent. I then called the background check company (which was an automated service) and left a message.
The next day, June 17th, I looked through the court judicial records and searched my name. I should say now that when I was 19 (in 2006), I was caught buying alcohol with a fake ID. The undercover police officer wrote me a ticket on the scene and told me to appear in court. I was not arrested and never fingerprinted. I did appear in court later that month, was told by a public defender that this incident was simply a violation, not a misdemeanor, and to plead nolo contendre and pay the fine, which I did. I have had multiple BCI checks in the state of Rhode Island and this incident has never shown up. I have a recent BCI check from June 17, 2010 that states I have no adult criminal history in the state of Rhode Island. I would also like to add, I am a registered nurse in both Massachusetts and Rhode Island and the process to obtain a license involves multiple background checks, all of which I have passed in order to obtain these licenses. Now back to the issue at hand.. So I checked the RI judicial records online and my name does show this incident from 2006, however it is typed as �VIOLATION: UNLAWFUL USE OF ID- FINES/ COURT COSTS� (NOT misdemeanor!). At this time I called the RI district court and they said to get the previously said BCI check and give it to them, which I did. They then gave me a court date for July 15, 2010 as a Motion to Expunge this violation.This same day, a representative from the background check company called. I explained the situation and she said to call them back so they can run another background check after I go to court on July 15th. I also called the hospital HR dept. and explained the situation and they also said to call after July 15th to update them as well.
However, I got to thinking, this term misdemeanor should not be anywhere on my background check EVER, as I was never arrested or convicted for a misdemeanor. I have no criminal record, except this fined VIOLATION. So again on June 17th at approximately 1:00 pm, I called the background agency AGAIN and left a message on the automated voicemail that this is in fact false information and I would still like to dispute the misdemeanor charge, regardless of the fact that i am getting my VIOLATION expunged. This was Thursday June 17th. I waited Friday- no call, then the weekend. On Monday (today, June 21, 2010) I called the background agency again and left a message stating I still have a dispute and have court files and a BCI check to disprove them. I am still awaiting a call back. Also today, I received another letter from the hospital (postmarked June 11, 2010) stating it has been 5 days and they have not received a dispute from the background check company, therefore they are making me ineligible for employment. I have kept both the hospital and the background check company informed of all matters and in the correct amount of time. The postmarked dates do not make sense. They cannot revoke my employment when I was only given the background check letter one day earlier. I am just confused and am wondering if there is anything I can do?
2 Answers from Attorneys
You may have a claim against the reporting agency for defamation or negligent misrepresentation. Also, you may have a claim against the hospital. I would like to look at the rhode island records and the rhode island statute under which you were charged. It may make sense to formally provide the hospital with the rhode island court records and demand your job back. Call me today if you want to discuss further.
It seems to me that it would be preferable to establish communication with the legal department of the hospital to insure that you are accepted for the job. While you may have some claims, it is usually preferable to exhaust all of an employee's options involving negotiation before resorting to asserting legal claims. You have given a good factual summary of your circumstance but nonetheless it would probably be good for your to talk with an attorney to make sure that all the facts are known and that you are getting sound advice. From what you describe, a good case could be made that the violations described by Attorney Harrington may have occured. Also, we have a more specific law, G.L. ch. 151B, the Fair Employment Practices Act, that addresses the use of an individuals criminal record for employment purposes. This law provides that an employer cannot discriminate against an individual based on: "(i) an arrest, detention, or disposition regarding any violation of law in which no conviction resulted, or (ii) a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace, or (iii) any conviction of a misdemeanor where the date of such conviction or the completion of any period of incarceration resulting therefrom, whichever date is later, occurred five or more years prior to the date of such application for employment or such request for information, unless such person has been convicted of any offense within five years immediately preceding the date of such application for employment or such request for information."
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