By Beth O’Neal, Esq.
(Due to the detailed nature of this topic, this response is presented in two parts. Part II will appear in our September issue.)
I have been reading something about Massachusetts employers being given greater access to the criminal records of applicants and employees. Is this true, and if so, how do I obtain permission to access this type of information and from where do I get it?
As many employers already know, on August 6, 2010, the Massachusetts Criminal Offender Record Information (“CORI”) law was significantly changed, which law went into effect on November 4, 2010. Part of this overhaul related to when and under what circumstances applicants for employment could be asked about their criminal records. This newly amended law, commonly referred to as the “ban the box” provision, prohibited applications for employment from containing an inquiry about the applicant’s criminal history, with certain exceptions. As a result of the amended law, while an employer may ask an applicant about their criminal history, it must wait until the initial interview, at the earliest. Even then, however, limitations on what, specifically, can be inquired about remain in effect. Specifically, employers cannot ask applicants about (i) an arrest, detention or disposition in which no conviction resulted; (ii) a first conviction for certain misdemeanors (drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace); and (iii) any misdemeanor conviction or period of incarceration resulting from a misdemeanor conviction which occurred 5 or more years prior to the inquiry, unless the applicant was convicted of any offense within the period of 5 years immediately preceding the inquiry. The “ban the box” prohibition does not apply to employers whose applicants are applying for positions for which a federal or state law or regulation creates a mandatory or presumptive disqualification from employment based upon a conviction, or to employers subject to an obligation under a federal or state law or regulation not to employ individuals who have been convicted of certain offenses. Employers who are exempt from the “ban the box” prohibition (e.g. banks, healthcare facilities, schools), have not been exempted from the iCORI law discussed below.
May 4, 2012 Effective Changes
On May 4, 2012, the second part of the CORI law amended in August 2010 went into effect. These changes give most employers greater access, through an online database, to criminal record information, but also require greater record keeping and retention requirements and notices to affected applicants and employees, whether the information is obtained directly by the employer or through a credit reporting agency (“CRA”), a term familiar to many employers under the Fair Credit Reporting Act (“FCRA”), a federal law. The newly effective law is subject to oversight by the Massachusetts Department of Criminal Justice Information Services (“DCJIS”), and the DCJIS has issued regulations for purposes of interpreting and carrying out the new law.
Greater iCOR I Access
Beginning May 4, 2012, all employers, not just those employers who had successfully petitioned for access under the old law (being primarily those dealing with vulnerable populations such as schools, daycare facilities, and long term care facilities for the elderly and disabled), may obtain “Standard Access” to criminal record information through the iCORI system. Standard Access will permit employers to obtain criminal record information about an applicant or employee’s pending criminal charges, even cases that have been continued without a finding until the charges have been finally dismissed, and charges that resulted in a conviction, limited to the past 10 years for felonies, and the past 5 years for misdemeanors. Where such convictions are included on an individual’s CORI report, all prior misdemeanor and felony convictions records will be made available as well, for the entire period permitted under the statute, regardless of when the convictions occurred. All employers will have access to records of convictions for murder, manslaughter, and certain sexual offenses, unless sealed.
In the End ...
The new law and the regulations are intended to give employers greater access, in a more efficient manner, to a more significant amount of information. That said, the regulations are cumbersome, and the requirements may be overwhelming to many. In addition, there is the potential for liability, including the assessment of civil penalties, where an employer does not comply with the new law and the regulations. Employers are encouraged to consult with legal counsel who is well versed in the new law, in order to insure that access by the employer is proper and complies with the law and regulations.
See our September issue for more information on CORI, including Authorizations, Record Keeping and Retention, and Adverse Actions and more.
Beth O’Neal, Esq., is a partner in the Boston law firm of Masterman, Culbert & Tully LLP. Send questions to email@example.com.
Published in Cape & Plymouth Business July 2012
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