On August 6, 2010, Governor Patrick signed into law Criminal Offender Record Information (“CORI”) reform that had been years in the making. CORI consists of records compiled by Massachusetts criminal justice agencies regarding the nature and disposition of criminal charges against an individual, including arrest, pre-trial and other judicial proceedings, sentencing, incarceration, rehabilitation or release. The law impacts the way most employers and others who have access to CORI inquire about, access, use and maintain criminal history information obtained in background checks. While the provisions of the new law that go into effect this year impact only employers, other provisions effective in 2012 will apply to the use and access of CORI in any decision regarding applicants for employment, housing, professional licensing, and volunteer service opportunities. Moreover, several provisions of the law apply to organizations that obtain criminal record history from sources other than the Massachusetts CORI process, such as independent or third party background checks.
Inquiries on Written Employment Application Forms
The new law makes it unlawful for most employers to inquire on their “initial written application form” about an applicant’s “criminal offender record information,” which broadly includes records and data compiled by a criminal justice agency concerning a criminal charge, arrest, or conviction. Employers may continue to make such inquiries of applicants at later stages of the hiring process, such as in interviews. This “ban-the-box” prohibition is effective November 4, 2010, so employers should take steps now to modify their written employment applications to ensure compliance.
There are two narrow exceptions to the “ban the box” prohibition. Employers may continue to inquire as to criminal history in their written application forms if either (1) the position is one for which an applicant with a background of certain criminal offenses would be disqualified under federal or state law or regulations, or (2) the employer is required by law not to employ persons who have been convicted of certain criminal offenses. Examples of such employers include schools, child care providers and certain employers who service the elderly or disabled.
The “ban-the-box” prohibition does not apply to applications pertaining to housing, professional licensing or volunteer service opportunities.
New Limits on Information Available and Its Use
The law creates a new Department of Criminal Justice Information Services (“Department”) and establishes an internet database from which CORI can be obtained, subject to certain requirements. These requirements, which apply to employment, housing, professional licensing or volunteer service opportunities, include certification that the request is for a permissible purpose; that the subject of the inquiry has signed a consent authorizing the requestor to obtain the information; and, that the requestor has examined a form of government issued identification to verify the subject’s identity. CORI available to requestors is now limited to felony convictions for 10 years following disposition, or, if the individual was incarcerated, 10 years from the date of release; misdemeanor convictions for five years following disposition, or, if, the individual was incarcerated, five years from the date of release; and, pending criminal charges.
Businesses may still use CORI in making decisions in employment, housing or professional licensing, subject to certain disclosure requirements. If a business has the criminal history record of an applicant, whether through the Department or through another source (such as a third party background check), the business must provide the applicant with a copy of such criminal history record before questioning the applicant about it or taking adverse action based on the record.
In addition, businesses that conduct five or more criminal background checks per year, whether through the Department or through other sources, must have a written CORI policy. Finally, a business is obligated to discard an individual’s CORI within seven years from either the last date of employment, residency or volunteer service or the date of the final decision regarding the individual.
Protections for Employers
The law also contains certain protections for employers. Specifically, the law shields employers from liability for failure to hire claims based upon erroneous CORI and from negligent hiring claims by reason of relying on CORI requested and received from the Department so long as employers make their employment decision within 90-days of obtaining the records and follow procedures that comply with the CORI statute and the Department’s regulations.
Recommended Actions
As portions of the law go into effect as early as November 2010, employers should review and modify their written employment application forms to comply with the new prohibitions against inquiries pertaining to criminal offense records.
All businesses that use criminal offense history, from any source, in decisions pertaining to employment, housing, and volunteer services should also review and revise their application processes; develop a written CORI policy; and train personnel on the new limitations on permissible inquiries, disclosure requirements, and record retention rules.
If you need advice about how the new law applies to your business or organization, please contact your usual Goulston & Storrs attorney or any member of the Employment or Multifamily Housing groups.
This advisory was authored by Elizabeth K. Levine and Adrienne M. Markham, members of the firm's Employment group.
Pursuant to IRS Circular 230, please be advised that, to the extent this communication contains any federal tax advice, it is not intended to be, was not written to be and cannot be used by any taxpayer for the purpose of (i) avoiding penalties under U.S. federal tax law or (ii) promoting, marketing or recommending to another taxpayer any transaction or matter addressed herein.
This G&S advisory should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer concerning your situation and any specific legal questions you may have.
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