Massachusetts CORI Amendments Require Employers to Take Close Look at Job Application Process

On August 6, Governor Deval Patrick signed into law a bill making significant changes to the Massachusetts Criminal Offender Record Information (CORI) law. The new law is extensive and contains changes to all aspects of CORI and the state’s mandatory sentencing laws. One of the underlying purposes of the new law is to help rehabilitate people with criminal records by making it easier for them to return to the workplace, while at the same time, encouraging employers to hire them. In order to fulfill that goal, the new law offers protection for employers that rely on criminal record information, limits the information employers can access, and gives specific rights to job applicants with criminal records.

Employment-Related Changes

In furtherance of the goal of enabling people with criminal records to enter or return to the workplace, the new law makes CORI more accessible to employers and volunteer organizations. However, it limits the information that is available to potential employers and prevents employers from screening out applicants at the initial application stage simply based on their criminal backgrounds. The most relevant parts of the new law are:

• The new law makes it unlawful for most employers to inquire about applicants’ criminal backgrounds on their initial written applications. Employers may, however, still inquire about criminal offender information later in the job application process.
• Employers still will be able to obtain certain information about convictions, but information will only be accessible for 10 years for most felony convictions and five years for most misdemeanor convictions.
• Before questioning job applicants about their criminal records or making adverse employment decisions based on these records, employers must provide applicants with copies of the records.
• Most employers that conduct background checks will be required to maintain a written CORI policy.
• Many employers will be shielded from negligent hiring claims if they rely on criminal records and make their employment decisions within 90 days of obtaining the records.
• Many employers will be shielded from discrimination claims stemming from the use of criminal records that contain erroneous information.

Which Employers Does This Affect?

Many employers may assume that they are not affected by these amendments because they do not use the CORI system to obtain information about potential employees. However, in addition to affecting employers that use CORI directly, many of the changes also apply to employers that rely on more general background checks that include criminal information. For example, any employer that obtains criminal record information through any source (including a third-party reporting agency that conducts background checks) will be required to maintain a written CORI policy.

What Should Employers Do?

The amendments to CORI provide a good opportunity for employers to examine their background check policies, their process for obtaining information about job applicants, and their use of background check information during the job application process. While most employers do not obtain criminal record information at the initial job application stage and wait to run background checks until much later in the application process, employers should ensure that their policies cannot be construed as screening out applicants based on their criminal records alone.

Specific steps employers should take include:

1. Revising their job application forms;

2. Revamping their hiring procedures to comply with the new
law; and

3. Adopting a written CORI policy.