• New Massachusetts Law on Criminal Background Checks
  • August 25, 2010 | Author: Brian E. Lewis
  • Law Firm: Jackson Lewis LLP - Boston Office
  • How employers access and use criminal offender record information ("CORI") in the Commonwealth has changed under a new law signed by Governor Deval Patrick signed on August 6, 2010. Among other things, the new CORI law bans the use of questions about criminal history on written employment applications. This ban becomes effective November 4, 2010. The law also creates a new method and database for employers to access criminal records, replacing the current procedure with the Criminal History Systems Board. This becomes effective in May 2012.

    Employers who obtain CORI information (either through the new state database or a third party) will have to provide it to an applicant prior to questioning the applicant about his or her criminal history or prior to taking any adverse action. Failure to do so may subject an employer to investigation, hearing and "sanctions" by the Criminal History Systems Board and a civil fine ranging from $1,000 to $5,000.

    "Ban the Box" Provision
    The CORI law makes it illegal for employers to request on an "initial written application form" any information about an applicant's criminal history. The only exception is for individuals applying for positions for which any federal or state law or regulation creates a mandatory or presumptive disqualification based upon a conviction for one or more types of criminal offenses. Massachusetts employers must review their employment applications to remove any questions asking for information on an applicant's criminal history.

    The Massachusetts Commission Against Discrimination (MCAD) will have authority to enforce this part of the law.

    New State Database
    Under the old law, CORI information was maintained and regulated by the Criminal History Systems Board. Certain employers were allowed access automatically to the database. Other were not allowed access or had to petition the Board to receive access. The new law does away with this scheme and creates a new system that provides greater access for employers through the Internet.

    The law creates a new state agency, the Department of Criminal Justice Information Services ("DCJIS"), to maintain and regulate the database of CORI information. After complying with certain requirements, employers will be allowed to obtain CORI information from the new database.

    Dissemination Log
    The new CORI law requires employers to limit and monitor the dissemination of CORI information that they receive. CORI information may be shared only with those that "need to know." In addition, employers must maintain a "secondary dissemination log" that details when and to whom the information was given, and the purpose of the dissemination. This log is subject to inspection and audit by the DCJIS.

    Employers may not keep a copy of CORI information obtained from the DCJIS for more than seven years from the last day of an employee's employment or from the date of the employer's final decision on an applicant.

    Adverse Action Based on CORI not Prohibited
    Nothing in the new CORI law prohibits an employer from making an adverse decision on the basis of an individual's criminal history; however, if the employer does so, it must provide the CORI information to the affected individual.

    Employers should be mindful that the new CORI law does not alter existing law on the scope of permissible actions regarding an applicant or employee's criminal history. Under Massachusetts law, an employer is prohibited from discriminating against any person because he or she fails to furnish information regarding: (i) an arrest, detention, or disposition regarding any violation of law for which no conviction resulted; (ii) a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace; or (iii) a conviction for a misdemeanor five or more years old.

    Under the new law, an employer may receive information on "pending criminal charges" from the DCJIS database, but it cannot use such information to make an employment decision.

    Safe Harbor
    If an employer obtains CORI information from the new state database, follows the required procedures, and made an employment decision within 90 days of obtaining the CORI information, the employer will not be liable for negligent hiring.

    Moreover, an employer will not be liable for discriminatory employment practices if the record from the state database contains erroneous information, the employer made the employment decision within 90 days of obtaining the CORI information, and the employer would not have been liable if the information from the database was accurate.

    The law does not provide a similar safe harbor if the employer receives the information from a private, third-party vendor.

    Written CORI Policy
    The new CORI law requires employers to create a written "CORI Policy" that describes the employer's practice in requesting criminal history records. If an employer conducts at least five criminal background investigations each year, it must create and maintain a "written criminal offender record information policy" that, among other things, notifies applicants of potential adverse decisions based on criminal records. This policy is required regardless of whether the employer requests the records from the new state DCJIS database or uses a third-party vendor.