Reminder: Deadline May 4, 2012

The final provisions of the 2010 revisions to the Massachusetts Criminal Offender Record Information (CORI) law go into effect on May 4, 2012.  Please see items 2, 3, and 4 of our 2010 Alert, below.

SEPTEMBER 2010

New Massachusetts Law Regulates Employers' Use of Criminal Background Information

A new Massachusetts law regulates how employers may use information about a person's criminal record.  Massachusetts maintains a database of "criminal offender record information" or "CORI" and regulates who has access to it and how CORI can be used.  The new law affects Massachusetts employers' use of CORI and other criminal history in several ways.

  1. No application questions about criminal history (effective 11/4/10).  Beginning on November 4, 2010, an employer may not ask about a Massachusetts applicant's criminal history on its employment application.  Violators will be subject to civil actions for lost wages, emotional distress, punitive damages and attorneys' fees.  There is an exception for employers hiring for positions from which applicants with certain criminal convictions are automatically or presumptively disqualified by law.  And, of course, an employer may still ask an applicant about his or her criminal history during an interview or, to the extent available, obtain it from a source other than the applicant.
  2. No sandbagging (effective 5/4/12).  If an employer has an applicant's CORI at the time of an interview, the employer must give the applicant a copy of all criminal history records in the employer's possession (whether or not obtained through the CORI database) before asking about the applicant's criminal history.  In addition, if an employer declines to hire an applicant (or fires an employee) based on the person's criminal history, the employer must give the person a copy of any criminal history record in the employer's possession.  Employers should also keep in mind the existing Massachusetts law prohibiting them from asking about certain first-offense and older misdemeanor convictions and arrests that did not result in any conviction, as well as their obligations under the Federal Fair Credit Reporting Act.
  3. Written policy required (effective 5/4/12).  An employer who conducts 5 or more criminal background investigations per year (whether directly or through a third-party vendor) must adopt a written criminal background policy.  The policy must provide that the employer will:  notify applicants when it plans to make adverse decisions based on CORI; give applicants a copy of their CORI (and of the written policy); and give applicants information about how to correct mistakes in their criminal record. 
  4. Less criminal history available (effective 5/4/12).  The new law also narrows the scope of CORI available to most employers.  Unless an employer is entitled to enhanced CORI access, an applicant who has no pending charges and has not been convicted of or incarcerated for a felony within the prior 10 years or a misdemeanor within the prior 5 years will appear to have a clean criminal record.  Homicide and sex crime convictions, however, will remain visible to employers forever unless a judge orders them sealed.
  5. Other provisions.  The law also promises to make the CORI database accessible over the internet by 2012, provides employers who rely on the CORI database with limited immunity from claims for negligent hiring and requires employers to maintain a "secondary dissemination log" describing each instance in which they forward CORI to anyone. 

Recommended Action Items: 

  • Remove criminal background questions from job applications by November 4, 2010.
  • Review hiring practices to ensure compliance with the "no-sandbagging" rule.
  • Implement a written criminal background policy.