Memorandum: Amendments to Massachusetts Law Mandate Changes to Employment Applications and the Use of Criminal History InformationSeptember 23, 2010
We assume you all know about the recent amendments to the Criminal Offender Record Information ("CORI") law applicable to all employers that employ persons in Massachusetts. However, we wanted you to have the following summary, which we hope will be of assistance as the amendments are implemented.
The amendments, at least in part, are designed to encourage the employment of persons with criminal histories. CORI is a system many Massachusetts employers use to access criminal conviction information pertaining to employees and applicants. The changes described below, however, generally apply to the use of all criminal background information, regardless of whether the information was obtained from CORI or a third party, such as a credit reporting agency.
Most significantly to employers, the CORI amendments:
- Forbid employers from obtaining criminal background information in their initial written application for employment. Employers are not forbidden, however, from seeking such information at a later stage in the hiring process. One exception to the prohibition arises when the employer is required to obtain criminal background information by state or federal law, or where applicants are statutorily barred from employment because they have been convicted of certain crimes. This part of the amendments relating to employment applications will become effective November 4, 2010. The other CORI amendments discussed below become effective February 6, 2012 (18 months from the effective date).
- Require employers to maintain a CORI policy. Employers who conduct five or more criminal background investigations a year, whether criminal offender record information is obtained from the Department of Criminal Justice Information Services (the "Department") or from any other source (including a third-party credit reporting agency), must maintain a written CORI policy. This policy must include a statement that the employer will: (i) notify the applicant of the potential adverse decision based on the criminal offender record information; (ii) provide a copy of the criminal offender record information and the policy to the applicant; and (iii) provide information concerning the process for correcting a criminal record. Information regarding correcting a criminal record can be found on CORI's website, www.mass.gov/chsb. The state promises to provide additional guidance regarding the CORI policy on its website, including at which point during the hiring process the policy must be provided to the applicant.
- Limit the scope of permissible conviction-related inquiries during the interview/application process. When, later in the hiring process, subsequent to the submission of the initial written application, an employer inquires about an applicant's criminal history, such inquiries must be limited to questions regarding: (i) felony convictions no older than ten years old; (ii) misdemeanor convictions no older than five years old; and (iii) currently pending criminal charges.
- Require employers to provide copies of criminal records to the applicant prior to questioning the applicant about those records. This requirement is similar to that under the federal Fair Credit Reporting Act. Copies will now need to be provided, however, even when records are obtained directly by an employer, as well as by a third-party credit reporting agency.
- Restrict the sharing of criminal conviction information. Criminal offender record information can only be shared with individuals within the requesting entity that have a need to know the contents of the criminal offender record information to serve the purpose for which the information was obtained. Further, upon such dissemination, the original requester must maintain a "secondary dissemination log" for a period of one year following the dissemination. The log must include: (i) the name of the subject of the criminal offender record information; (ii) the date of birth of the subject; (iii) the date of the dissemination; (iv) the name of the person to whom it was disseminated; and (v) the purpose of the dissemination. Secondary dissemination logs are subject to review and audit by the Department.
- Require employers to destroy certain records of criminal convictions within a certain period of time following the decision not to hire or the termination of employment. Unless otherwise required by law, if an employer obtains criminal history records from the Department, those records, including any copies thereof, electronic or otherwise, may not be maintained (i.e., must be destroyed and/or permanently deleted) for more than seven years following either: (i) the last date of the subject's employment or volunteer service; or (ii) the date of the final decision of the requestor not to hire or otherwise utilize the applicant.
Employers will also enjoy certain new protections from the CORI amendments. So long as employers comply with CORI's restrictions and make the hiring decision within 90 days of obtaining the criminal offender record information, they will be protected from: (i) negligent hiring claims by reason of relying solely on criminal offender record information received from the Department; and (ii) discriminatory employment practices for the failure to hire a person on the basis of criminal offender record information that contains erroneous information requested and received from the Department.
Action Plan and Recommendations in Response to the New Amendments. In response to the new amendments, we suggest that employers take the following actions:
(i) Ensure that employment applications are reviewed and revised to exclude any inquiries regarding criminal background information that are prohibited by the CORI law;
(ii) Modify or create policies and procedures pertaining to background checks;
(iii) Review and revise recordkeeping policies and procedures; and
(iv) Train human resources personnel, managers, and others involved in the interview/hire process regarding the new requirements.