Massachusetts has enacted a new law making it harder for employers to learn whether job applicants have criminal records. On August 6, Governor Deval Patrick signed the new Criminal Offender Records Information Act (CORI), which goes into effect in stages. The law makes Massachusetts the only state to prohibit most employers from asking about criminal records on job applications. Because with the unemployment rate as high as it's been in 20 years, this is what we want the state to focus on. Riiiiight.
All Massachusetts employers should now review their forms and procedures, and most will need to make changes to its application and recordkeeping processes. Here are five things you need to know:
You can’t ask applicants about criminal history (at first). Until now, Massachusetts had fairly complicated rules on what you could and couldn’t ask applicants about any criminal past. The new law simplifies this: You can’t ask at all on the initial job application. The only exceptions are the rare circumstances where an employer legally can’t hire a convict, or where a convict would be presumptively disqualified by law. This restriction starts November 4, so you have less than two months to change your applications.
But you can ask after the initial job application. The thinking here is that applicants with criminal histories won’t be automatically rejected without the employer first considering their qualifications. So you can still ask applicants if they had run-ins with the law — just not on that initial application, which is where most employers do it now. Of course, the new law makes it harder to verify what they tell you, because ...
More criminal records will be sealed earlier. Under the new law, misdemeanor convictions will be sealed after only five years (after conviction or release from prison), and felony convictions after ten. (This provision doesn’t go into affect until May 4, 2012.) There are a few exceptions, like certain sex crimes, murder, and manslaughter, as well as subsequent convictions. So while the new law doesn’t allow applicants to lie about older convictions, employers are prevented from learning about them. Oh, wait. The old law already allowed criminals to lie about sealed convictions. If an ex-con has a sealed record, the law allows him or her to answer "no record" when applying for a job. Nice ...
And it will be harder to perform CORI checks. Before doing a criminal-record check, an employer needs to verify the applicant’s identity and get his or her written authorization. If the employer then rejects the applicant based on the CORI results, it must first present the applicant with a copy of the results. If an employer conducts more than four CORI checks a year, it must develop a written CORI policy. Call your employment counsel for help with this policy if you think you’ll be doing multiple CORI checks.
There are also new recordkeeping requirements. An employer has to keep applicants’ written authorizations for CORI checks for a year afterward. On the other hand, employers can’t keep the results of CORI checks beyond seven years after either the date the applicant was rejected or the date the employee terminates. And there are serious penalties for employers who improperly share the results with third parties. Under most circumstances, an employer cannot share these results at all.
Do your job applications comply? If they look like most applications, they probably don't. You better start thinking about revising your employment application, as well as setting up a CORI policy (if you need one). You've got two months.
Think this is a good rule? Does the benefit of maybe preventing snap judgments by employers outweigh the impropriety of having the state censor otherwise-public information? Share your thoughts in the comments below.