Changes in Massachusetts CORI Laws Affect Employment Applications (and so much more!)

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.