The Impact of CORI Reform on Massachusetts Employers

On August 6, 2010, Governor Patrick signed into law legislation that significantly overhauled the Criminal Offender Record Information (CORI) law. Several sections of the new CORI law impact the ways in which employers can use criminal history information during the hiring process. Although there’s been quite a bit of press over the last week since the legislation was signed into law, many employers are still confused about the affect this law will have on their hiring practices. To clear up some of the confusion, employers should be aware of the following key provisions in the new law:

Employers Cannot Ask Questions About Any Convictions On “Initial” Job Applications

Under the new law, employers are prohibited from asking applicants about their criminal offender record information, including information about arrests, criminal charges and incarceration, on an “initial written application form.” This provision of the CORI law amends Massachusetts General Laws Chapter 151B, Section 4, our state’s anti-discrimination law. Prior to the new amendment, employers had been allowed to ask applicants about felony convictions and certain misdemeanor convictions that were not protected from disclosure. Unfortunately, the new law does not define “initial written application form” so it remains unclear whether employers can ask applicants about criminal offender record information later on in the application process, such as during an interview. The only exceptions to the conviction question ban on initial job applications are where a federal or state law disqualifies an applicant for that position because of a conviction or where an employer is subject to an obligation under federal or state law not to employ an individual who has been convicted.

Employers Will Receive Less Information on a CORI Report

Although employers will still be able to obtain criminal information from the CORI database, they will no longer be able to receive felony convictions that have been closed for more than ten years or misdemeanor convictions that have been closed for more than five years. Previously, employers had been able to receive information about felony convictions occurring up to fifteen years earlier and misdemeanor convictions occurring up to ten years earlier.

Employers That Conduct More than Four Criminal Background Investigations Per Year Must Have a Written Policy

The new law requires that a written policy be in place when an employer conducts more than four criminal background investigations annually. The written policy must include language notifying applicants of the following: 1) that the employer will give copies of the policy and the information obtained during the criminal background investigation to them; 2) that there is a potential for an adverse decision based on the criminal background investigation; and 3) the steps applicants can take to correct their criminal record. Employers must then make sure to give a copy of the policy and the information obtained during the investigation to the applicant.

Employers Have a Duty to Destroy CORI Information

Employers cannot retain a terminated employee’s CORI information for more than seven years from the last day of employment. Similarly, employers cannot retain an unsuccessful applicant’s information for more than seven years from the date of the decision not to hire.

Employers Are Given Some Liability Protections

The law does provide some good news for employers; namely, under the new CORI law, employers cannot be held liable for negligent hiring when relying solely on CORI records and not conducting additional criminal background checks prior to hiring an applicant. Additionally, employers are protected from liability for failure to hire an applicant because of erroneous information on the applicant’s CORI.

Effective Dates for New Law

The initial application provision takes effect on November 4, 2010, which means employers that continue to ask conviction questions on the initial written application on or after November 4 are likely to face liability under the new law. The rest of the law does not take effect until February 6, 2012.