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Massachusetts Significantly Amends Criminal Background Check Law: Implications For All Employers

Massachusetts Governor Deval Patrick recently signed a law that significantly changes many employers’ obligations with respect to criminal background information obtained from applicants for employment, current employees and volunteers.  One of the stated goals of the law is to make it easier for job applicants with criminal convictions to get a “foot in the door.” However, the law also preserves an employer’s right to make decisions based on an applicant’s criminal record.  While the law will not take effect primarily until 2012, one important change will become effective on November 4, 2010.

Many Employers Will Need to Revise Job Applications by November 4, 2010

Effective November 4, 2010, many employers will no longer be permitted to inquire about any criminal history information on initial job applications.  Previously, employers were generally permitted to inquire into convictions for felonies and certain misdemeanors through job applications.  The new law amends Chapter 151B of the Mass. General Laws (Massachusetts’ anti-discrimination statute) to prohibit such inquiries.

The law does not prevent any employer from making decisions based on an applicant’s criminal history; however, many employers will now be required to obtain the information from a source other than the initial job application.  Thus, employers may continue to obtain criminal background checks regarding applicants who have received conditional offers of employment; but the method for obtaining such information must change.

There are a few exceptions to this blanket prohibition.  For instance, employers that are subject to a state or federal law restricting the employment of individuals who have been convicted of certain crimes may continue to inquire about criminal histories on initial employment applications.  Thus, employers such as schools, long-term care facilities, and day-care providers that work with vulnerable communities will likely fall under this exception and may continue to use the job application to obtain criminal history information.  These employers must continue, however, to limit the job application inquiry to convictions for felonies and certain misdemeanors, and may not inquire into arrests that have not resulted in a conviction.  In addition, employers with fewer than 6 employees are not subject to Chapter 151B.

We encourage all Massachusetts employers to act promptly to ensure that they are in compliance with the law prior to November 4, 2010.  The Firm can assist with revising job applications to comply with the law, and in determining whether your organization falls within the category of employers that will continue to be permitted to ask about criminal background information on initial job applications.

Changes to the CORI System 

Massachusetts will continue to provide a state-run information system allowing access to criminal offender records information (“CORI”).  However, the law imposes several changes to the CORI system, which will be effective in 2012.

The law creates a new state agency called the Department of Criminal Justice Information Systems (the “Department”).  The Department will be responsible for maintaining a CORI database and providing access to employers to the CORI database. The Department will replace the Criminal History Systems Board, which currently has responsibility for the CORI system.  The Department will be responsible for creating online access to the CORI database, which should allow faster access to CORI reports.

Changes Affecting Employers That Are Not Currently Required To Use The CORI System

Beginning in 2012, all private employers will have access to CORI records through an online database.  The online database will be accessible for a fee.  Thus, many employers that are currently ineligible to access the CORI database will have the option of using the CORI system.

The law will limit the information that most employers may obtain through the CORI system to:  (i) felony records for 10 years following the disposition of the felony, (ii) misdemeanor records for 5 years following the disposition of the misdemeanor, and (iii) pending criminal charges.  Convictions for murder, voluntary manslaughter, involuntary manslaughter, and certain sex offenses will be available in the CORI database permanently.  Significantly, the law will not affect the scope of the information available to employers that are required by law to run CORI searches on job applicants.

Notably, under the new law, employers remain able to make adverse employment decisions based on criminal history.

Additional Obligations Imposed On ALL Employers Relying on Criminal History Records

Beginning in 2012, the law will impose new obligations on all employers that rely on criminal history records to make employment decisions.  Presently, the applicability of these changes is somewhat unclear.  Further guidance is expected soon by way of state-issued guidelines and regulations.  Below, we summarize the new obligations, and we will be providing further, in-depth updates in the coming months.  As of now, it appears that:

• Most employers will need to provide an applicant with a copy of the applicant’s criminal record before questioning the applicant about the record.

• Most employers will need to provide an applicant with a copy of the applicant’s criminal record before making an adverse decision based on the record (unless the employer has already provided a copy of the record to the applicant).

• Most employers will be required to maintain a written CORI policy stating the employer’s procedure for use of criminal records.

• Most employers will be prohibited from retaining CORI records for more than seven (7) years after an employee’s last date of employment, and from retaining an unsuccessful applicant’s CORI record for more than seven (7) years from the date of the decision not to hire the candidate.

• Most employers will be required to limit and monitor the dissemination of CORI records, which may only be shared with employees who “need to know” the information, and to maintain a “secondary dissemination log” that details when and to whom the CORI information was given.

• Most employers will be protected from failure-to-hire claims based on erroneous information on a candidate’s CORI record, and from negligent hiring claims if the employer relies on CORI records.

Next Steps for Employers

We recommend the following next steps for compliance with the recent amendment:

• Each Massachusetts employer ought to determine whether it can lawfully inquire about criminal history information on the job application.  This analysis can be complex.  If the employer can lawfully inquire, then the language must be in perfect compliance with the law.  If the employer can not lawfully inquire, then the language must be omitted by November 4, 2010.  Regardless, this is an ideal opportunity for each employer to update the job application form for both legal revisions and best practices developments.

• As the law requires a CORI policy for employers that will annually conduct 5 or more criminal background investigations, Massachusetts employers that currently do not have such a policy may want to begin development and implementation of a such a policy.

• Employers in other states and multi-state employers may want to use the new Massachusetts law as a reminder to update their employment applications for recent federal and state law changes as well as best practices developments.

• The Firm recommends that non-profit employers consider how this law may affect their volunteer policies and practices – with respect to screening of criminal records and related issues with volunteers.

• Finally, the Firm recommends and provides a complete compliance package that includes policies for requesting authorization from applicants, volunteers and employees to obtain criminal background information, the disclosure and authorization forms required by law, and guidelines for relying on criminal background information.  The Firm provides compliance packages for employers that currently use the Massachusetts CORI system, as well as for employers that currently use private consumer reporting agencies.

Please contact me if you have any questions regarding revising your job application, or any other questions about the new law.  In the coming months, we will keep you updated on recommended next steps in order to prepare for the changes that will be effective in 2012.