As a leader in pre-employment background screening, MYB knows the importance of passing on news and information to the public as soon as we hear about it. Here is an update regarding Massachusetts background check changes in policy: On August 6, 2010, Governor Patrick signed into law a reform measure that makes significant changes to the Criminal Offender Record Information (CORI) law applicable to all employers that employ persons in Massachusetts. CORI is a system many Massachusetts employers use in background screening to access criminal conviction information pertaining to employees and applicants. Among other things, the law creates a new Department of Criminal Justice Information Services (Department) in the Executive Office of Public Safety to take over past functions of the Criminal History Systems Board. The changes in the CORI law generally apply to the use of all criminal background information, regardless of whether the information was obtained from CORI or a third party, such as a credit reporting agency. Most significantly to employers, the CORI amendments will: – Prohibit employers from asking applicants about their criminal background in the written application for employment.
– Require employers to provide copies of criminal records to the applicant prior to questioning the applicant about those records.
– Limit the scope of information available on a CORI report 2 to the following:
1. felony convictions that are less than ten years old
2. misdemeanor convictions that are less than five years old
3. currently pending criminal charges
– Restrict the sharing of criminal conviction information to individuals within the requesting entity that have a need to know the contents of the criminal offender record information to serve the purpose for which the information was obtained.
– The original requester must maintain a “secondary dissemination log” for a period of one year following the dissemination, which must include:
1. the name of the subject of the criminal offender record information
2. the date of birth of the subject
3. the date of the dissemination
4. the name of the person to whom it was disseminated
5. the purpose of the dissemination. Secondary dissemination
(Logs are subject to review and audit by the Department).
– Require employers destroy certain records of criminal convictions within a certain period of time following the decision not to hire or the termination of employment.
– Unless otherwise required by law, if an employer obtains criminal history records from the Department, those records, including any copies thereof, electronic or otherwise, may not be maintained for more than seven years following either: (1) the last date of the subject’s employment or volunteer service; or (2) the date of the final decision of the requestor not to hire or otherwise utilize the applicant.
– Require employers who conduct five or more criminal background investigations a year, whether criminal offender record information is obtained from the Department or from any other source (including a third party credit reporting agency), to maintain a written CORI policy. This policy must include a statement that the employer will:
• notify the applicant of the potential adverse decision based on the criminal offender record information
• provide a copy of the criminal offender record information and the policy to the applicant; and
• provide information concerning the process for correcting a criminal record. Information regarding correcting a criminal record can be found on CORI’s website, www.mass.gov/chsb. The state promises to provide additional guidance regarding the CORI policy on its website, including at which point during the hiring process the policy must be provided to the applicant. Significantly, the new laws also provide that as long as an employer complies with CORI restrictions and makes a hiring decision within 90 days of obtaining the CORI information, it will be protected from:
– any negligent hiring claim “by reason of relying solely on criminal offender record information received from the [Department] and not performing additional criminal history background checks, unless required to do so by law”
– any discrimination claim for the failure to hire a person on the basis of criminal offender record information that contains erroneous information requested and received from the Department “if the employer would not have been liable if the information had been accurate.” Employers should not delay in drafting a new CORI policy and training HR personnel to comply with the new requirements.
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