For the Record

New CORI Measure Impacts Employers’ Hiring Processes

Prior to hiring a prospective employee, many businesses opt to conduct background checks, some of which include checks into an applicant’s criminal history. Indeed, obtaining information about an applicant’s criminal records and general background can be quite helpful for verifying the veracity of an applicant and in learning more information about an individual who is otherwise an unknown commodity.
The ways in which businesses can obtain and use criminal-offender record information (CORI) during the hiring process was limited by the state’s CORI-reform law, which Gov. Deval Patrick signed into law last summer. CORI records include information and data related to the nature and disposition of a criminal charge, arrest, pre-trial and other judicial proceedings, sentencing, incarceration, rehabilitation, or release.
The impetus for the new law was to make it easier for individuals to secure employment. In fact, in supporting the law, Patrick announced that “the best way to break the cycle of recidivism is to make it possible for people to get a job.” The first piece of the new CORI law went into effect on Nov. 4, 2010; other sections will not take effect until early next year.
Under the portion of the CORI law that took effect last November, it became unlawful for employers to ask job applicants about their criminal-offender record information, including information about arrests, criminal charges, and incarceration, on an “initial written application.” The new CORI law created this prohibition by amending Mass. General Laws Chapter 151B, Section 4, our state’s anti-discrimination law. Before this new amendment, employers could ask job applicants about felony convictions and certain misdemeanor convictions that were not protected from disclosure. The only exceptions to the conviction-question ban on initial job applications occur when 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.
Unfortunately, the term ‘initial written application’ was not defined in the new law, so it remains unclear whether the new CORI law was intended to prohibit job interviewers from asking about criminal-offender record information later on in the application process, such as during an interview. The Mass. Commission Against Discrimination (MCAD), the state administrative agency that enforces our state’s anti-discrimination law, has taken the position that a job interviewer may inquire about convictions in very limited circumstances. Indeed, the MCAD has indicated that questions about convictions are permissible as long as the interviewer does not ask about any of the following:
• An arrest that did not result in a conviction;
• A criminal detention or disposition that did not result in a conviction;
• A first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace;
• A conviction for a misdemeanor where the date of the conviction predates the inquiry by more than five years; and
• Sealed records and juvenile offenses.
Without question, this list presents more problems than it does solutions for employers. Since interviews usually consist of broad and open-ended questions, it is very likely that the interviewer who asks about an applicant’s past convictions will erroneously lead the applicant to disclose conduct that the MCAD deems protected, which could ultimately result in litigation. This is true even if a question is well-intentioned; it could still be seen as a violation.
To avoid this problem, employers should train their interviewers on the proper questions to ask applicants, and provide their interviewers with a written set of questions to help steer the discussion away from unlawful inquiries.
In addition to the initial-application piece of the new law, another provision, slated to take effect on Feb. 6, 2012, will further restrict an employer’s ability to obtain criminal conviction history. While 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 10 years or misdemeanor convictions that have been closed for more than five years. Currently, employers may receive information about felony convictions occurring up to 15 years earlier and misdemeanor convictions occurring up to 10 years earlier.
Another provision that takes effect on Feb. 6, 2012 will require employers to create and implement a written policy if the employer annually conducts more than four criminal background investigations. This written policy must include language notifying applicants of the following: that the employer will give copies of the policy and the information obtained during the criminal background investigation to the applicant; that there is a potential for an adverse decision based on the criminal background investigation; and the steps applicants can take to correct their criminal record. Employers must then make sure that the applicant receives a copy of the policy and the information obtained during the investigation.
Also effective Feb. 6, 2012, the new law will prohibit employers from retaining a terminated employee’s CORI information for more than seven years from the last day of employment. The same rule will also apply to job applicants; thus, employers will be prohibited from retaining an unsuccessful applicant’s information for more than seven years from the date of the decision not to hire.
However, Feb. 6, 2012 will bring some good news for employers. Specifically, under another section that takes effect that day, the new law will protect employers from claims of negligent hiring when relying solely on CORI records and not conducting additional criminal background checks prior to hiring an applicant. This provision will also protect employers who fail to hire an applicant because of erroneous information on the applicant’s CORI.
In this ever-increasingly litigious society, employers should routinely gather all available information regarding a prospective employee before deciding whether or not to hire them. In light of the new CORI law, employers who are currently using criminal-record information in their hiring process should review their current policies and practices to ensure compliance with the new law.

Amy B. Royal, Esq. and Benjamin A. Bristol, Esq. specialize exclusively in management-side labor and employment law at Royal LLP, a woman-owned, boutique, management-side labor- and employment-law firm; (413) 586-2288; [email protected]