As a result of legislation signed into law by Governor Deval Patrick on August 6, 2010, the Commonwealth’s Criminal Offender Record Information (“CORI”) system has undergone sweeping changes which dramatically impact employers doing business in the Commonwealth of Massachusetts. Effective November 4, 2010, the ability of most employers to inquiry about a candidate’s criminal background on an employment application will be limited.
The prohibition against inquiries on initial applications exempts from compliance certain employers, i.e., school systems and financial services companies, who are prohibited by state or federal law from hiring individuals convicted of certain types of crimes. Notably, this restriction does not prohibit criminal history inquiries points beyond the initial application process, such as during an actual interview. For example, employers could seek this information during subsequent interviews.
Effective in February of 2012, there will be further changes to an employer’s ability to inquire into a candidate’s criminal background which will ease an employer’s ability to make appropriate background inquiries. The Commonwealth will establish a new CORI database which employers can, for a fee, access to obtain information regarding an applicant’s convictions and pending charges. However, before an employer can use this information to either eliminate the candidate or question the candidate about this information, the employer will be required to provide the applicant with a copy of that CORI information. If the employer uses the information provided by the CORI database to make a hiring decision within ninety (90) days of receipt of the information, that employer will receive an additional benefit. The employer will be protected from liability from certain types of adverse claims, such as negligent hiring or failure to hire claims.
There are also new limitations on the information which employers may access from the CORI database. Records for most felony convictions will not be available from the database after ten (10) years and misdemeanor information will be restricted after five (5) years. Certain sex crimes, murder convictions, and various other crimes will remain available from the CORI database.
Any employer which conducts five or more criminal background checks per year must establish a written CORI policy which:
- Notifies the candidate of a potential adverse employment decision based upon the CORI information;
- Provides the candidate with a copy of the CORI information in the employer’s possession, together with a copy of the employer’s written CORI policy; and
- Provides the candidate with information regarding the process to correct criminal information.
The employer must retain the criminal record information for seven (7) years after the adverse decision or termination of employment, after which it is required to discard that information.
The practical implication of these changes to the CORI system is that employers must undertake immediate action to conform their employment applications to eliminate any initial inquiry into criminal background. And, in addition, employers who conduct five (5) or more criminal background checks on employees much establish a written CORI policy which complies with the law’s requirements.
Please contact me directly at (617) 330-7123, or at dmurphy@rubinrudman.com, if you have any questions or need assistance with compliance.
Imbedded among the provisions of what the Legislature declared an “emergency law” entitled “An Act Relative To Economic Development Reorganization” are major changes to the requirements of the Massachusetts Personnel Records Act, Mass. Gen. L. Ch 149, Sec 148, subsection 52C.
Under this new law, which became effective August 5, 2010, an employer must now:
1) Notify an employee within 10 days, if the employer places any information in the employee’s personnel file which either has been or will be used to negatively impact the employee’s employment with that employer. Specifically, if any of this information could be used to evaluate an employee’s performance and subject that employee to disciplinary action, adversely impact that employee’s opportunity for promotion, transfer, or additional compensation, the employer must now comply with this new law and give notice of the filing of this information into the employee’s personnel file.
2) If an employee requests, in writing, the opportunity to review his or her personnel record, the employer must provide that employee with an opportunity to review that record within 5 days of receipt of the written request. NOTE: The new law also provides that the review of the record shall take place at the employer’s place of business, during normal business hours.
3) If an employee provides a written request for a copy of his or her file, that request, as well, must be honored within 5 days of the written request for a copy of that record.
An employee may only request a review of his or her personnel file on 2 occasions within a calendar year, unless that employee has received a notification of the placement of negative information in that employee’s personnel file. This notice and the opportunity to review the file are not considered part of the 2 maximum reviews per calendar year.
These changes are significant and will tremendously impact the work of human resources professionals and management, and how they approach employee relations and personnel records.
If you have any questions about this new law, please contact me directly at dmurphy@rubinrudman.com or (617) 330-7123.
The recent shooting with multiple fatalities at a beer distributorship in Connecticut serves as a grim reminder to employers and human resource professionals everywhere that one should always be aware of the potential of danger when administering disciplinary measures to employees. There are very simple and practical rules for employers and human resources professionals to undertake when imposing disciplinary actions which should increase safety and minimize risk.
1) Never meet alone with an employee. Always have a witness.
2) Position the meeting so that the employee is farthest away from an exit and you and your witness are closest to that exit. That way, if the employee becomes violent or threatens violence, you have a moment or two to make your escape.
3) Carry your cell phone with you and be prepared to contact the police if you are threatened or if violence erupts.
4) Treat the employee with dignity and respect. Do not belittle or demean the employee, regardless of the reason for the disciplinary measure. Be firm, but respectful. In most instances, employees will not agree with you about the reason for the discipline. That’s ok. You can explain that that they have the right to disagree with you, but that the decision is final.
5) In the event that you are terminating the employee, if practical, do so in a private setting to allow the employee some privacy (but see Rule 1). Terminations are always emotional and difficult for everyone involved. It’s understandable that the employee may get upset and emotional. A private setting will afford them an opportunity to deal with their emotions without the prospect of public humiliation. Of course, if the employee become angry or threatening, end the discussion and leave.
6) Inform the employee that he or she may not return to the premises for any reason without your express permission and notify receptionists and other personnel that the employee is no longer with the company. If, after that notice is provided to both the departing employee and to necessary personnel, the employee does return to the premises, do not hesitate to call 911 and report that an unauthorized ex-employee has returned to the workplace. It is better to be cautious than injured.
These guidelines provide no guarantee of safety of course. No one can predict human behavior. However, they do provide a reminder that one has to be practical and consider the safety of everyone when disciplining employees.
For further information regarding methods of handling workplace discipline, please contact me directly at dmurphy@rubinrudman.com or at (617) 330-7123
