The CORI (Criminal Offender Record Information) reforms set up two years ago then went fully into effect as of May 2012. Unfortunately, employers, most likely smaller ones without HR may not want to celebrate if they get caught up in a web of new requirements with stiff penalties for failure to meet the new regulations. The reforms create rules employers must follow if they want to learn about the possible criminal backgrounds of their applicants (in some cases, volunteers, tenants or even your neighbors). Employers may go online to access applicants’ records. The law limits what can be asked on an application, and sets narrow path for inquiry in an interview.
Simply put, unless there is another law or regulation stating that a criminal history will affect employment status for certain classes of employer, it is unlawful to ask about it on an application. On applications, a box that asks if you have ever been convicted of a criminal offense is now illegal – barring the exceptions below. This is a discrimination matter enforced by the MCAD (Massachusetts Commission Against Discrimination). However, Massachusetts law does not prohibit an employer from asking about most serious criminal offender background information – the 10-5 rule as I call it* – during an employment interview.
Information from the iCORI database is available to employers and landlords throughout the state. For a fee, these people can look into backgrounds for convictions related to killings, sex offenses, *felonies from the past ten years, and misdemeanors in the past five. The CORI reforms are not only requirements, telling employers what they have to do for applicants when they conduct background checks. They include record keeping rules. There is a brand new online database of criminal records and a new agency to manage everything. However, employers that access criminal records through the system must obtain permission from applicants before viewing their criminal history. These forms must be kept on record for at least one year. Violations of the record keeping regulations are subject to fines of up to $50,000.
If an employer shares this information, it must be on a “need to know basis.” That such persons have this private information should be on file, and if anyone outside of the organization gains access to any of the acquired information, they must be recorded in a secondary log. They also add that these logs must be retained for at least one year from the sharing of any information and those employers may not hold onto iCORI records for more than seven years after the employee leaves. However, if the applicant was not hired, then it becomes seven years after the final decision not to hire the applicant.
Another interesting addition to the law is that regardless of whether or not the information is acquired from iCORI, any employer conducting five or more background checks per year is required to have and maintain a written policy about how the information is used.
How will all of this affect the hiring process? Some think there will be minimal impact while others thing there has been insufficient education of the public and business community and smaller businesses may inadvertently face a new class of discrimination claims.
Massachusetts Arrest Record Law, G.L. c. 151B, §4(9):
The law forbids an employer from requesting criminal information on the initial employment applications, with two important (but limited) exceptions
- Employers with fewer than six employees,
- If a federal or state law or regulation states that the applicant will be disqualified for the position for which he or she is applying based on a conviction of a criminal offense, or
- If a federal or state law or regulation imposes an obligation on the employer not to employ individuals who have been convicted of criminal offenses (e.g. Schools, Churches, and Nursing Homes)
For more specific or detailed information on the reforms, please feel free to contact me for a consultation. If you would like an entire training course, check out the mass.gov website.