background check/continuation w/o a finding

[boston33]

Background Check/Continuation Without a Finding

What is the name of your state?
Massachusetts

Several years ago, when I was 18 or 19, I was arrested and charged with assault (but not battery). It was my first (and is my only) arrest, and when I went to court the next day, my court-appointed attorney advised me to plead no contest. I pled no contest and received a one year continuation without a finding.

My attorney told me that as long as I did not get arrested during the continuation period, the arrest would be cleared from my record, and that I would legally be able to say that I have never been arrested. The one year continuation period has come and gone with no arrests or violations. I was recently hired by a well-known financial services company that will sponsor me to get the licenses necessary for my position. In order to take the licensing exams, the National Association of Securities Dealers (NASD) must perform a background check.

My questions are:
1) Will my prospective employer and/or the NASD be able to see that arrest on my record?
2) Should I have hired a lawyer to make sure that the arrest was cleared from my record?
3) How should I answer the question of "Have you ever been the subject of an investigation, been convicted of, pled guilty to, or pled no contest ('nolo') to crime?"

Any help would be greatly appreciated.

 

[cbg]

I don't know the answers to the first two questions, but with regards to the third I need a little more information to fit the answers to your question into the parameters of Massachusetts law.

1.) Was this a simple assault charge?

2.) Was it a misdemeanor or a felony?

3.) EXACTLY how many years ago was this?

 

[Beth3]

1) Will my prospective employer and/or the NASD be able to see that arrest on my record? Very likely, yes. The arrest record still exists.

2) Should I have hired a lawyer to make sure that the arrest was cleared from my record? I don't believe you can clear the arrest record. It may be possible to have the court record of the plea agreement expunged but the arrest record is separate and will likely always exist and in multiple places.

3) How should I answer the question of "Have you ever been the subject of an investigation, been convicted of, pled guilty to, or pled no contest ('nolo') to crime?" You need to answer honestly, which means the answer is "yes." What we don't know is whether the assault and plea agreement will have any bearing on your eligibilty for the position. What is certain though is that if you lie on the application form it will bar you from employment or if it's discovered after you are hired, will result in the termination of your employment.

All that said, I suggest you talk to the attorney who represented you at the time. These questions are in the category of criminal law, not employment law.

 

[boston33]

I don't know the answers to the first two questions, but with regards to the third I need a little more information to fit the answers to your question into the parameters of Massachusetts law.

1.) Was this a simple assault charge?
Yes, simple assault.
2.) Was it a misdemeanor or a felony?
This was a misdemeanor.
3.) EXACTLY how many years ago was this?

I'm pretty sure it was almost exactly 5 years ago.

Thanks.

 

[cbg]

Under Massachusetts law, an employer may not ask about first time convictions for certain crimes including simple assault. They also may not ask about misdemeanors that are more than five years old.

THIS DOES NOT MEAN THAT YOU CAN ANSWER "NO" TO ANY QUESTIONS ABOUT CONVICTIONS. It means that they cannot take the information into account when making a hiring decision. Under MA law you can answer "no" to such questions IF THE RECORD IS SEALED. If the record has not been sealed, you still need to answer "yes" but it can't be held against you in the circumstances I described.

 

[longneck]

one thing to watch out for is that the employer can use that info to decide if they want to carry your licenses or not. i have seen cases where continued employment has hinged on an employee's ability to obtain and hold an NASD license.

cbg- do you think an end-run like that around MA's law would work?

 

[cbg]

IF the holding of the license is a BFOQ AND the license is turned down, the employer could legally fire/refuse to hire our poster.

But also keep in mind that I'm not saying the poster HAS to be hired/cannot be fired, either; only that such employment decisions have to be made on a basis other than their criminal record.