Effective November 4, 2010, many employers will no longer be permitted to inquire about any criminal history information on initial job applications.
Recent legislation enacted significant changes to the Massachusetts Criminal Offender Record Information ("CORI") law. The most immediate requirement under the statute is a change to the existing Massachusetts Fair Employment Practices law M.G.L. c. 151B prohibiting employers from requesting criminal offender record information in any "initial written employment application." This represents a significant change from the existing legal landscape that permitted employers to include as part of their job application form, ordinarily the initial stage of any employment hiring process, to inquire about an applicant's criminal history. There remains some significant exceptions to this new prohibition; if the job is one in which a federal or a state law or regulation disqualifies an applicant based on certain prior convictions, or is such that it would prohibit the employer from employing persons who have been convicted of certain criminal offenses, then those employers may still ask in the initial stages of hiring about criminal history. Many existing job application forms inquire about whether the applicant has any felony convictions and certain misdemeanor convictions. In order to come into compliance prior to November 4, 2010, with the amendments to Chapter 151B, employers should review and determine whether their existing job applications may contradict the recently enacted amendments.
There are also other significant changes to the existing statute which will not take effect until the year 2012. The statute creates a new agency entitled the "Department of Criminal Justice Information Services" that will take over many of the obligations of the existing Criminal History Systems Board. Under the new statute, access to the database for all CORI information will be improved. The statute establishes an internet-accessible database for a fee. Information that an employer can obtain from that database will be limited to: (1) felony convictions that concluded within the past ten years; (2) misdemeanor convictions that concluded within the past five years; and (3) pending criminal charges.
The statute will also impose numerous other limits on the way in which an employer may use the information, it will require confirmation that such use is for a legally permissible purpose and will require employers to implement a written CORI policy if they conduct more than five criminal background investigations per year. This article has not covered and does not address all of the statutory updates and revisions, but is merely meant to inform employers of the most immediate and pending changes under the law which take effect on November 4, 2010. We recommend that any employer who currently utilizes the CORI system or inquires about criminal history in their job application consult with their counsel as to both applicability of the recently enacted changes, and any steps they may need to take to come into compliance.
This article is intended to serve as a summary of the issues outlined herein. While it may include some general guidance, it is not intended as, nor is it a substitute for, legal advice. Your receipt of Good Company or any of its individual articles does not create an attorney-client relationship between you and Sheehan Phinney Bass + Green or the Sheehan Phinney Capitol Group. The opinions expressed in Good Company are those of the authors of the specific articles.
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