On August 6, 2010, Governor Deval Patrick signed legislation reforming the Criminal Offender Record Information Act (“CORI Act”) in Massachusetts. The CORI Act provides the mechanism through which employers and other interested parties can access Massachusetts criminal records. The new CORI Act reforms limit that access by:
- Prohibiting most employers from inquiring about criminal history in job applications; and
- Limiting the information available to employers in criminal record checks through the CORI system
The reforms also establish new procedures that employers must follow to obtain and rely on criminal record information in making employment decisions. This Alert reviews the major changes to the CORI Act that will impact Massachusetts employers. It also summarizes the steps that employers will need to take to comply with the new law.
Criminal History Questions Prohibited in Most Job Applications
Effective November 4, 2010, most Massachusetts employers will be prohibited from inquiring into the criminal history of prospective employees in initial job applications. The only exceptions are when:
The job applied for is one for which a person who has been convicted of a crime is at least presumptively disqualified by law; or
The employer or an affiliate is legally prohibited from employing a convicted person in one or more jobs
For example, under Section 19 of the Federal Deposit Insurance Act, banks are prohibited from hiring persons who have been convicted of various crimes. Therefore, banks and their affiliates may continue to include criminal record inquiries in their employment applications. When neither of these exceptions applies, employers will still have the right to inquire into an applicant’s criminal history at any time after the initial application, such as in a job interview.
Changes Will Be Made to Available Information
The CORI reforms will also change the information that is available to most employers. Under current law, most employers may obtain only limited criminal records through the CORI system using the same limited right to access available to members of the general public. For example, except for relatively recent felony convictions, public access to felony convictions is limited to those that are punishable by five years of imprisonment or more.
Under the CORI Act reforms, effective May 4, 2012, employers will be entitled to obtain information concerning a broader range of criminal convictions, as well as pending criminal charges. However, there are some limits on the available information under that provision as well. Absent a subsequent offense, felony convictions will only be available to employers for 10 years after the subject’s conviction date or release date if the subject was incarcerated. Absent a subsequent offense, misdemeanor convictions will be available to employers for five years after the conviction date or release date if the subject was incarcerated. These match the standards for individuals to obtain sealing of most types of criminal records, if they so request. Employers will still be able to access indefinitely information on certain convictions, including those for murder, voluntary and involuntary manslaughter, and certain sex offenses.
The CORI Act reforms create an exception to these time period restrictions when the employer is legally authorized to obtain criminal record information. In addition, all employers could continue to utilize the public access provision to obtain information concerning felony convictions punishable by imprisonment for five years or more, regardless of the date of conviction or release, unless the records have been sealed.
New Procedures for Obtaining and Relying on Criminal Records
Beginning May 4, 2012, Massachusetts employers that rely on Massachusetts criminal record checks in making employment decisions must implement the following new procedures.
Authorization and Verification
Under the new CORI law, before an employer may conduct a criminal record check on a job applicant through the Massachusetts CORI system, the applicant must sign an acknowledgement form authorizing the employer to obtain the applicant’s criminal record. The employer must then verify the applicant’s identity by reviewing a form of the applicant’s government-issued identification. After certifying that a signed authorization has been obtained and that the applicant’s identity has been verified, the employer is free to conduct a criminal background check through the CORI system.
Using CORI Reports in Employment Decisions
An employer that has obtained Massachusetts criminal records and wishes to question an applicant about the results, must first provide the applicant with a copy of any criminal record that it has obtained. If the employer decides not to hire an applicant in part or in whole because of the applicant’s criminal history record, the employer must, if it has not already done so, provide the applicant with a copy of the record.
The CORI Act reforms do not prohibit employers from basing employment decisions on criminal record information. However, they also do not insulate employers that do so. The federal Equal Employment Opportunity Commission continues to take the position that, at least in many employment contexts, an automatic ban on hiring those convicted of criminal offenses results in unlawful employment discrimination.
New Policy Development Requirements
Employers that conduct five or more criminal record checks in a year, through either the CORI system or another source, must maintain a written CORI policy. The policy must provide for notifying applicants about the potential of an adverse decision based on the criminal record information. It must also include provisions for giving an applicant copies of the criminal record information, the policy and the process for correcting a criminal record.
Maintaining and Destroying Criminal Records
Employers must retain the authorizations they receive from applicants for criminal records checks for at least one year from the date that the employer conducts the check. Furthermore, employers must destroy background checks in their possession within seven years of the termination date of an employee or within seven years of the date on which a final decision was made not to hire a job applicant.
Restrictions and Recordkeeping Rules Concerning Dissemination
Finally, after obtaining a criminal record through the CORI system, employers are prohibited from disseminating the record beyond those within the employer with a need to know, certain government officials or as requested by the subject of the report. If an employer disseminates a criminal record, it must maintain a dissemination log for one year from the dissemination date including: (i) the subject’s name; (ii) the subject’s date of birth; (iii) the dissemination date; (iv) the name of the person to whom the record was disseminated; and (v) the purpose for the dissemination.
Next Steps for Employers
Unless an employer qualifies for one of the exceptions from the new employment application rules, the employer should remove criminal conviction questions from its employment applications for Massachusetts hiring before the employment application restrictions take effect on November 4, 2010.
By May 4, 2012, an employer that conducts at least five Massachusetts criminal record checks in a year should develop a written CORI policy that satisfies the standards described above. An employer that conducts CORI checks will also need to develop an authorization form and recordkeeping procedures to comply with the record maintenance, distribution and dissemination log standards. The document destruction requirements may warrant keeping those records separate from other personnel records. Finally, employers that obtain Massachusetts criminal records will need to satisfy the new standards concerning disclosures in the hiring process.