On August 6, 2010, Governor Deval Patrick signed into law long-promised amendments to the Massachusetts Criminal Offender Record Information law, commonly referred to as the CORI law. The amendments are generally effective as of February 6, 2012. However, the amendments relating to written employment applications become effective on November 4, 2010. These changes will have important ramifications for employers that use criminal offender record information to learn about criminal charges, arrests and incarceration of current and prospective employees.
Initial Written Employment Applications
Currently, under the Massachusetts Fair Employment Practices Law (See M.G.L. Chapter 151B, §4(9)), employers may ask job applicants, including in a written employment application, about felony convictions, but are prohibited from asking job applicants questions about (i) arrests that do not result in convictions, (ii) a first conviction for certain specified misdemeanors, and (iii) a conviction of a misdemeanor where the date of conviction or date of incarceration (whichever is later) is five or more years from the date of the request for the information. However, effective as of November 4, 2010, employers will be prohibited from asking applicants questions about any criminal offender record information on an “initial written application form” subject to two very limited exceptions: (i) where a federal or state law or regulation requires that the applicant be disqualified from a particular position on the basis of a conviction of a criminal offense, and (ii) where under a federal or state law or regulation an employer is required not to employ an individual on the basis of a conviction of a criminal offense. While further guidance is required, it seems apparent that after November 4, 2010 employers will be permitted to ask job applicants questions about felony convictions and misdemeanor convictions which are not protected from disclosure (as described in the first sentence above) in subsequent phases of the hiring process, such as during an interview.
In light of these changes, employers must discontinue any practice of asking applicants questions about any criminal offender record information on an initial written application form on or before November 4, 2010.
Under the amended CORI laws, employers in possession of an applicant’s criminal offender record information will be required to provide the applicant with a copy of this criminal offender record information before questioning the applicant about his or her criminal history. Moreover, if the employer makes a hiring decision adverse to the applicant based upon the applicant’s criminal history, the employer must provide the applicant with a copy of the criminal offender record information in the employer’s possession, unless such information was previously provided to the applicant.
Employers should be aware that applicants and employees will no longer be blind to requests to review their CORI records. The CORI amendments create a new department under the executive office known as the Department of Criminal Justice Information Services to which all CORI requests must be made. This department is required to maintain a log of all CORI requests including the name of the requestor, the name of the subject, the date of the request, and the purpose of the request. All applicants and employees will be entitled to receive from the department a copy of the log listing the names of all persons requesting a copy of their CORI record, the date of the request, and the purpose of the request.
Requirement to Maintain a CORI Policy
Employers that annually request five or more criminal background investigations, whether criminal offender record information is obtained from Department of Criminal Justice Information Services or any other source, must maintain a written CORI policy providing that, in addition to any obligations required under applicable state regulations, the employer will (i) notify the applicant of the potential for an adverse decision based upon CORI records; (ii) provide a copy of the CORI record and policy to the applicant; and (iii) provide information to the applicant concerning the process of correcting a criminal record.
Access to CORI Records
All CORI records will need to be accessed through the Department of Criminal Justice Information Services. To request CORI records, employers will first need to verify the individual’s identity by reviewing a government issued identification and then provide the Department with the individual’s name, date of birth and the last four digits of their social security number. In addition, the employer will be required to certify to the Department that the CORI request is for a purpose permitted under the statute (such as an employment decision), that the individual authorized the employer in writing to access their CORI records, and that the employer verified the individual’s identity by reviewing a government issued identification. Employers will be required to maintain all written CORI authorizations for a period of one year following the date of the CORI request. Employers may not maintain CORI records of former employees for more than seven years after their termination, and may not maintain CORI records for unsuccessful applicants for more than seven years following the date of the hiring decision.
Content of CORI Records
Employers will have access to (i) felony convictions that occurred within the past ten years or, if the conviction resulted in incarceration, for the ten year period following the applicant’s or the employee’s release from incarceration; (ii) misdemeanor convictions that occurred within the past five years or, if the conviction resulted in incarceration, for the five year period following the applicant’s or the employee’s release from incarceration; (iii) pending criminal charges; and (iv) unsealed convictions for certain crimes, such as murder and sex offenses.
If you have any questions about how this new law may affect you or how you can comply with it, please contact us.
This update is designed for general information only. The information presented should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. For further information please contact one of our attorneys. Information contained herein has been abridged from laws, court decisions and administrative rulings, and should not be construed as legal advice or legal opinions on specific facts. The enclosed material is provided for education and information purposes by MacLean Holloway Doherty Ardiff & Morse, P.C. to clients and others who may be interested in the subject matter.