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E-Alerts

New Massachusetts Criminal Background Check Requirements To Take Effect On May 4, 2012

[May 3, 2012]  Beginning May 4, 2012, new requirements will go into effect for employers that conduct criminal background checks on applicants – requirements that were enacted as part of the Massachusetts Criminal Offender Record Information Reform Law of 2010 (the “CORI Reform Law”).

The major provisions of the CORI Reform Law that take effect on May 4 require certain employers to follow certain procedural safeguards and have a CORI policy, as summarized below.  Currently, there is no regulatory guidance on these requirements, but the Department of Criminal Justice Information Services (“DCJIS”) in Massachusetts is expected to issue final regulations in the near future detailing and implementing these requirements.

Note: A separate portion of the Massachusetts CORI Reform Law, prohibiting most employers from including questions about criminal history on their initial job application forms, previously went into effect in November 2010.  (See Schwartz Hannum PC’s e-alert, “Massachusetts Significantly Amends Criminal Background Check Law:  Implications For All Employers,” dated September 2010.)

Requirements Affecting All Employers

Two of the provisions of the Massachusetts CORI Reform Law that go into effect on May 4, 2012, apply to all employers that obtain criminal offender record information (“CORI Records”) as a part of criminal background checks on applicants.  In this regard, the statute provides that CORI Records include any criminal offender record information compiled by a Massachusetts criminal justice agency and obtained from any source.  A “Massachusetts criminal justice agency” includes not only DCJIS, but also any agency with the principal function of (a) crime prevention, including research or the sponsorship of research; (b) the apprehension, prosecution, adjudication, incarceration, or rehabilitation of criminal offenders; or (c) the collection, storage, dissemination or usage of criminal offender record information (including courts and police departments).  Thus, the new CORI Reform Law applies broadly to employers that get CORI Records indirectly from these sources, as well.  In short, CORI Records are not limited to criminal records obtained directly from DCJIS, but also include criminal records obtained from any Massachusetts criminal justice agency by a third party (such as a private consumer reporting agency).

Employers that obtain any CORI Records from any source are subject to the following new requirements:

 

  • Provision Of Criminal Background Check Records Prior To Questioning.
    Before (i) questioning an applicant regarding his or her criminal background check or (ii) making an adverse decision based on an applicant’s criminal background check, an employer must provide the applicant with a copy of his or her criminal background check record, if the criminal background check contains CORI Records, regardless of whether the CORI Records were obtained from DCJIS or another source.
  • Criminal Offender Record Information Policy.
    An employer that “annually conducts 5 or more criminal background investigations” that include CORI Records (regardless of the source) is required to have a written CORI policy.  The policy must, at a minimum, require the employer to:  (i) notify the applicant of a potential adverse decision based on the criminal offender record information; (ii) provide a copy of the criminal offender record information and the policy to the applicant; and (iii) provide information concerning the process for correcting a criminal history record.  (Note: although a plain reading of the statute suggests that this requirement applies to any employer that conducts criminal background checks that include CORI Records, regardless of whether obtained directly from DCJIS or other source, the proposed regulations indicated that the foregoing new policy requirement will apply only to parties obtaining CORI Records directly from DCJIS.  Unless and until the final regulations provide clarification on this issue, it seems prudent to defer to the plain language of the new CORI Reform Law.)

Changes Affecting Employers That Use The DCJIS Database

The other statutory changes described below will affect only those employers that obtain CORI Records directly through DCJIS:

 

  • Expanded Access To DCJIS-Provided CORI Records.
    Previously, only limited categories of employers (generally, organizations that serve vulnerable populations, such as schools, day-care centers and long-term-care facilities) were permitted to access CORI Records directly from DCJIS.  As of May 4, 2012, all employers will be permitted to access CORI Records directly from DCJIS.
  • Method Of Accessing CORI Records From DCJIS.
    Employers will be able to obtain CORI Records through a special website known as “iCORI,” which is currently under development by DCJIS.  DCJIS has indicated that it will provide appropriate training and information regarding this website.
  • Scope Of Access To CORI Records.
    In most cases, employers obtaining CORI Records from DCJIS will be entitled to access (i) felony convictions for ten years following the disposition of the charge (including the termination of any period of incarceration or custody); (ii) misdemeanor convictions for five years following the disposition of the charge (including the termination of any period of incarceration or custody); and (iii) pending criminal charges, including cases that have been continued without a finding, until the charges have been dismissed.  However, information related to convictions for murder, manslaughter and certain sex offenses will remain available permanently, unless sealed.  In addition, certain categories of employers will be entitled to a broader range of criminal history information.
  • Acknowledgment Form.
    Employers must obtain a signed acknowledgment form from the subject of a CORI Record check, authorizing the employer to obtain the individual’s CORI Records from DCJIS and examine them.  The acknowledgment form must be retained for one year following the date of the request of CORI Records from DCJIS.
  • Secondary Dissemination Log.
    An employer obtaining CORI Records from DCJIS may disseminate the information only to individuals within the organization who have a “need to know” the information.  In addition, a requestor must record any dissemination of these CORI Records in a special log for a period of one year following the dissemination of the information.  The dissemination log must include the following information:  (i) the subject’s name; (ii) the subject’s date of birth; (iii) the date of the dissemination; (iv) the name of the person to whom the information was disseminated; and (v) the purpose of the dissemination.
  • Record Retention.
    Employers may not maintain CORI Records obtained from DCJIS for more than seven years after (i) an employee’s last date of employment or (ii) the date of the final decision not to hire an applicant.  Employers should consider adopting appropriate policies and procedures to ensure compliance with this requirement.
  • Protection From Negligent-Hiring Claims.
    An employer may not be held liable for negligent hiring under Massachusetts law by reason of the employer having relied solely on CORI Records obtained from DCJIS and not having performed additional criminal background checks on an individual (unless such additional checks are required by law), so long as the employer: (i) made the employment decision within 90 days of receiving the CORI Records, and (ii) maintained and followed appropriate policies and procedures for verifying the individual’s identifying information.
  • Protection From Failure-To-Hire Claims.
    If an employer rejects an applicant on the basis of CORI Records obtained from DCJIS that turn out to be erroneous, the employer is immune from liability under Massachusetts law for a discriminatory failure to hire, so long as the employer: (i) would not have been liable for a discriminatory failure to hire if the information in the CORI Records had been accurate, (ii) made the employment decision within 90 days of receiving the CORI Records, and (iii) maintained and followed appropriate policies and procedures for verifying the applicant’s identifying information.

Enforcement

The Massachusetts CORI Reform Law gives DCJIS the authority to conduct audits to ensure that employers are maintaining acknowledgment forms and secondary dissemination logs in accordance with the statute.  Employers that knowingly obtain CORI Records from DCJIS or disseminate any CORI Records in violation of the law are subject to civil liability and criminal fines of up to $50,000 per violation.  Individuals, including human resources professionals, supervisors and managers, are subject to fines of up to $5,000 and potential imprisonment for knowing violations of the law.  In addition, all employers obtaining CORI Records may be investigated and sanctioned by the Criminal Record Review Board of DCJIS for failing to provide CORI Records to applicants as required by law.

Recommendations For Employers

In light of the new requirements imposed by the Massachusetts CORI Reform Law, we recommend that all employers that conduct (or plan to conduct) criminal background checks that include CORI Records (whether obtained from DCJIS or any other source) take the following steps:

 

  • Implement a formal, written criminal offender record information policy in compliance with the statute (a best practice, even if the employer is not required to have a written policy);
  • Conduct comprehensive training to ensure that all managers, supervisors and human resources personnel are aware of their obligations under the Massachusetts CORI Reform Law;
  • Ensure that insofar as CORI Records are accessed through third parties, such as consumer reporting agencies, such criminal record background checks are conducted in compliance with the federal Fair Credit Reporting Act and its Massachusetts equivalent.  These statutes impose obligations in addition to those required by the Massachusetts CORI Reform Law, including, for example, that subjects of background checks sign specific written authorizations and be provided with certain disclosure forms;
  • Consider whether to obtain CORI records directly from DCJIS, so as to take advantage of the new safe-harbor provisions for negligent-hiring and discriminatory failure-to-hire claims;
  • Ensure that employment decisions made on the basis of criminal background checks are implemented in a consistent, non-discriminatory manner.  In this regard, we recommend that, in consultation with counsel, employers create a formal, internal policy and guidelines for assessing information obtained through criminal background checks.  (When considering making employment decisions based on criminal background checks, employers should also be sure to consider the new guidance from the Equal Employment Opportunity Commission, which will be addressed in the near future in a separate E-Alert from Schwartz Hannum);
  • Be prepared to revise their policies and procedures as may be necessary once DCJIS has issued its final regulations under the Massachusetts CORI Reform Law; and
  • Update document retention protocols to reflect seven-year rule.

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Please do not hesitate to contact us if you have questions about the Massachusetts CORI Reform Law or criminal background checks generally.  Our attorneys have extensive experience in this developing area of the law, and we would be happy to help.