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New Massachusetts Law Overhauls Employer Access to Criminal Records

Publisher: Day Pitney Alert
August 11, 2010
Day Pitney Author(s) John P. McLafferty

On August 6, 2010, Massachusetts Governor Deval Patrick signed into law a comprehensive bill that overhauls the Criminal Offender Record Information (CORI) system used by many employers to access the criminal histories of job applicants and employees.  The new law will provide employers with access to criminal records through an online database, while simultaneously restricting the information available and imposing other requirements on employers. 

Effective November 4, 2010, employers will be prohibited from requesting criminal history information on any "initial written employment application."  Exempt from this provision are employers who (1) are barred by federal or state law from hiring individuals convicted of certain crimes, or (2) seek to fill positions for which conviction constitutes a disqualification under federal or state law.  The law does not address whether employers can make written requests for criminal history information subsequent to an applicant's completion of an initial application form. 

In addition, the following provisions of the law take effect May 4, 2012:

  • While employers will be provided access to an online criminal records database for the purpose of evaluating current and prospective employees, interns and volunteers,  information relating to felony convictions older than 10 years and misdemeanor convictions older than 5 years will be sealed and will not be available to employers.  Criminal history regarding convictions for murder, manslaughter and sexual offenses will remain available to employers permanently.  Certain employers, such as schools and nursing homes, will continue to have access to a broader array of conviction and arrest information, as currently provided by statute. 
  • Applicants may be questioned about their criminal records during the interview process, and employers may make adverse hiring decisions based on an applicant's criminal history.  Before taking action, however, an employer in possession of an applicant's criminal record history must provide the applicant with the record (1) prior to questioning him or her about his or her criminal history, or (2) if not previously provided to the applicant, when an adverse hiring decision is made.  This requirement applies regardless of whether the employer obtained the criminal record via the CORI system or from another source.
  • Employers conducting five or more criminal background investigations annually must maintain a written criminal offender record information policy.  The policy must provide that the employer will (i) notify the applicant of the potential adverse decision based on the criminal offender record information, (ii) provide the applicant with a copy of the policy and any criminal offender record information obtained, and (iii) provide information concerning the process for correcting a criminal record. 
  • Employers may only disseminate criminal history information at the employee's or applicant's request, or within the employer's business to those individuals who have a need to know the contents of the criminal record.  Requestors must also maintain a "secondary dissemination log," for a period of one year following the sharing of information, containing (i) the name of the subject, (ii) the date of birth of the subject, (iii) the date of dissemination, (iv) the name of the person to whom the record was disseminated and (v) the purpose of the dissemination. 
  • Unless otherwise provided by law or court order, employers are prohibited from maintaining copies of an individual's criminal record for more than seven years after the last date of employment or the date of the final decision not to hire the applicant. 

The law protects from liability employers who rely on the CORI database.  Employers will not be liable for claims of (1) negligent hiring by reason of relying solely on CORI records obtained from the Commonwealth and not performing additional criminal background checks, or (2) discriminatory employment practices for failure to hire a person based on erroneous information within the CORI database,  provided that the employer obtained and verified the CORI records in compliance with the law and made the challenged employment decision within 90 days of obtaining the criminal offender record information.

In the coming months, the newly created Department of Criminal Justice Information Services is expected to issue procedures and guidance concerning access to the CORI system and implementation of the CORI reform law.  In addition to revising application forms now in advance of the November 4, 2010, effective date for that provision of the law, Massachusetts employers should review their personnel policies and procedures to prepare for the May 2012 effective date of the remaining provisions of the law. 

If you have any questions associated with this legislation or criminal background investigations, please contact a member of the firm's Labor and Employment group.

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