What you need to know

Massachusetts recently enacted a CORI reform law that limits employers’ ability to inquire about prospective employees’ criminal convictions, creates new obligations for employers with respect to CORI record-keeping policies and procedures and protects employers from liability surrounding the use of CORI records in making hiring decisions.

What you need to do

Employers are advised to consult their attorneys for guidance on bringing current written employment applications and CORI record-keeping policies and procedures into compliance.

On August 6, Governor Patrick signed legislation to reform the administration of Massachusetts’ Criminal Offender Record Information system. The new law is primarily intended to expand job opportunities for persons with criminal records by reducing the length of time ex-offenders must wait before requesting that their criminal records be sealed. The law reduces the waiting period for sealing criminal records from 15 to 10 years for felonies and 10 to 5 years for misdemeanors. While the majority of the CORI reforms do not become effective until February 6, 2012, employers should especially be aware that the provision concerning criminal conviction inquiries in initial written employment applications will take effect on November 4, 2010.

Initial employment applications

Under the CORI reform law, employers are no longer permitted to solicit information on initial written employment applications regarding a prospective employee’s criminal record. The new law does not prohibit employers from asking questions about criminal history after the initial application form is submitted. This reform supplements current provisions of Massachusetts’ anti-discrimination law, which prevents employers from asking applicants about certain misdemeanor convictions or arrests not resulting in conviction.

Two notable exceptions to this new written employment application provision include:

  • applications for positions from which persons convicted of certain offenses are mandatorily or presumptively disqualified under federal or state law; and
  • applications for positions with employers obligated by federal or state law not to employ persons convicted of certain offenses.

These exceptions apply, for instance, to financial-services employers and employers such as schools, nursing homes and other care facilities that work with vulnerable populations and are prohibited by federal or state law from hiring persons convicted of certain offenses.

CORI requests and record-keeping procedures

Although non-exempt employers will no longer be permitted to inquire about applicants’ criminal histories in initial written forms, employers may still obtain applicant CORI records from the Massachusetts Department of Criminal Justice Information Services and/or may conduct criminal background checks through private vendors. Employers may use these records in making hiring decisions as long as they comply with the newly outlined procedures. These procedures require employers to provide applicants with a copy of their criminal history record when making any decision regarding employment, including a decision not to hire an applicant.

If an employer requests more than five criminal history records in a year, the employer must also institute and follow a written CORI policy providing that prospective employees are notified of any adverse employment decisions that were based on their criminal record, receive a copy of their CORI and the employer’s written CORI policy and are informed of the process for correcting their criminal records.

Employers are also obligated to destroy all copies of an employee’s or prospective employee’s CORI after seven years from the person’s last date of employment or from the date of any final employment decision, unless other laws or court orders apply. Employers with a valid reason for disseminating an individual’s criminal record must also maintain a log documenting dissemination details for a period of one year.

Employer protections

Finally, the CORI reform law protects employers’ use of CORI records in making employment decisions. Provided that an employer follows required procedures, it cannot be held liable for basing an adverse hiring decision on a CORI that is later found to contain errors, or for relying solely on an individual’s CORI for criminal background information.