The Latest Development in Criminal History Checks: The Massachusetts CORI Reform Act

On August 6, 2010, Massachusetts Governor Deval Patrick signed into law the CORI Reform Act, which institutes important changes in the way Massachusetts employers conduct criminal background checks and access Criminal Offender Record Information (CORI). Although the CORI Reform Act is limited to Massachusetts, this new law highlights some of the legal complexities of criminal background checks routinely performed by employers nationally.

CORI Reform Background and Implications

CORI includes all the data generated and maintained by the Massachusetts criminal justice system, such as arrest, conviction and incarceration records. The CORI Reform Act’s three significant changes for employers are as follows: (1) the Act prohibits most employers from asking about criminal history on job applications; (2) the Act requires that employers receive employee authorization before assessing criminal history in a background check, and requires employers to provide notice to an employee when obtaining and using criminal history for employment decisions; and (3) the Act requires certain employers to develop a written criminal history policy. Massachusetts employers must comply with the job application restriction by November 2010. The remaining requirements come into effect in February 2012.

The CORI Reform Act is the latest development in the complex area of criminal background checks. In recent years, the United States Equal Employment Opportunity Commission has aggressively investigated and litigated several cases nationally in which it alleges that an employer’s use of criminal history information to evaluate job candidates has a disparate impact on minority applicants. Class actions have been based on such disparate impact claims, including a class action against the United States Census Bureau for its use of criminal records in its hiring process. These litigation developments and the new Massachusetts law highlight the need for employers to carefully develop and implement criminal history background checks.

Prohibition Against Asking About Criminal History

Most Massachusetts employers ask on their employment applications some version of the following request: “Check the box if you ever been convicted of a felony.” The CORI Reform Act’s so-called “Ban-the-Box” provision now prohibits such inquiries, with certain limited exceptions.

It is now a violation of the Massachusetts anti-discrimination statute (Chapter 151B) for an employer to “request on an initial written application form” that a job applicant disclose his or her criminal history. The Ban-the-Box restriction does not apply to an employer that is subject to a state or federal law or regulation prohibiting or limiting the employment of individuals with conviction records.

An employer that is subject to the CORI Reform Act should review its current written job application forms and determine whether any questions requiring disclosure of an applicant’s criminal history must be removed. This restriction goes into effect November 4, 2010.

An Employer’s Use of Criminal History

The CORI Reform Act does not prohibit a Massachusetts employer from conducting “criminal background checks” on job applicants, but the Act does restrict how an employer collects, uses and maintains criminal history records.

Under the CORI Reform Act, before conducting a criminal background search on a job applicant, the employer must first obtain a signed acknowledgement from the applicant authorizing the employer to conduct the search. Once an employer has collected criminal history on an applicant, it may not question the applicant about his or her criminal history until it provides the applicant with a copy of the individual’s criminal history record. If the employer makes a decision adverse to the applicant that is based on the applicant’s criminal history record, the employer must provide the criminal history record to the applicant.

An employer that conducts more than five criminal background checks annually must now maintain a written criminal history policy stating that the employer will: (1) notify the applicant of an adverse decision based on CORI; (2) provide a copy of the CORI and the policy to the applicant; and (3) provide information concerning the process for correcting a criminal record.

In addition, the CORI Reform Act contains strict procedures that govern how employers store, maintain and disseminate CORI obtained during background searches. For example, employers are prohibited from maintaining CORI of former employees and unsuccessful job applicants for more than seven years from the date of the employee’s last day of employment or the date of the decision not to hire the applicant.

An employer’s failure to adhere to these procedures may result in fines and other sanctions to the employer, including civil fines of up to $5,000 for each violation.

Protections for Employers

The CORI Reform Act does contain some protections for employers. Under the Act, if an employer obtains and verifies official state CORI records in a manner that is consistent with the law and makes the employment decision within 90 days of receiving the CORI, the employer cannot be held liable for any failure-to-hire claim based on allegations that the CORI records in question contained erroneous information. In addition, if an employer follows these procedures, the CORI Reform Act provides that an employer may not be held liable on a negligent hiring claim that is based on arguments that the employer only reviewed official CORI records from the Commonwealth and did not perform an additional criminal history background check.

Restrictions on Access

The CORI Reform Act limits the type of CORI that will be available to most employers. For example, under new law, felony convictions on a person’s CORI record will be sealed and unavailable to most prospective employers after 10 years, instead of 15 years under prior law. Misdemeanors will be sealed after five years, rather than 10 under prior law. Some crimes, such as murder and manslaughter, will not be sealed to employers.

New Agency to Manage CORI

The CORI Reform Act also creates new government agency – the Department of Criminal Justice Information Services – to manage and maintain the Commonwealth’s CORI database. This new department is also charged with enforcing the terms of the CORI Reform Act, including those provisions that regulate employers.

Summary

The Massachusetts CORI Reform Act highlights the need for employers – both in Massachusetts and nationally – to examine carefully their criminal background check policies and procedures.