Massachusetts employment: CORI reform — “ban the box” goes into effect in November

Effective November, 2010, Massachusetts employers can no longer ask about a criminal record on an initial written job application, a reform passed over the summer along with several others with respect to Massachusetts’ Criminal Record Information law (CORI) that won’t take effect until as late as 2012. In “banning the box”, Massachusetts becomes the first state in the nation to remove the criminal record question from initial job applications for both public and private employers. Employers can currently use the “box” on initial job applications to ask about criminal convictions and possibly weed out applicants. Under the new law, questions can be asked about a criminal history later in the process. This will allow some applicants with criminal histories to get a foot in the door and have employers consider their qualifications before dismissing them based on a mistake made in the past.

Employers can protect themselves, however, by adding statements to applications that employment is contingent on a satisfactory review of an applicant’s background check. This may still have the deterrent effect on a potential employee even though he or she is not asked to be explicitly about convictions on the application. It does, however, eliminate the “eureka” defense in termination cases – where employers sometimes conduct intensive investigations after-the-fact to find evidence of deception on the part of the employee to justify the termination even though it was not the stated reason for the termination. Below is table explaining the changes to the CORI law to take effect in phases by May, 2012:

Old CORI Law: Employers could use the “box” on initial job applications to ask about criminal convictions and weed out applicants
New CORI Law: “Ban the Box” – employers can’t ask about a criminal record on a job application. [Comment: employers can protect themselves by making a statement on the application that employment is subject to a satisfactory outcome of a background check.]

Old CORI Law: Felonies sealed after 15 years clean record New CORI Law: Felonies sealed after 10 years clean record
Old CORI Law: Misdemeanors sealed after 10 years clean record New CORI Law: Misdemeanors sealed after 5 years clean record
Old CORI Law: The waiting period for sealing starts after probation or parole
New CORI Law: The waiting period for sealing starts at the beginning of probation or parole
Old CORI Law: The official CORI system is paper based, and requires a certification process for employers. Most employers use private background check companies that are not regulated
New CORI Law: The official CORI system will go online, and will be available to employers directly.

Old CORI Law: The CORI system sends out all conviction unless they are sealed
New CORI Law: The CORI system will automatically not send out convictions if they are eligible to be sealed
Old CORI Law: Continued Without Finding (CWOF) determinations are treated as convictions and can only be sealed after the sealing waiting periods
New CORI Law: CWOF determinations are treated as non-convictions once probation is completed and the case is dismissed
Old CORI Law: Non-convictions (dismissed, not guilty nolle prose) are available on CORIs
New CORI Law: Non-convictions (dismissed, not guilty nolle prose) are not available on CORIs unless the employer works with vulnerable segments of the community
Old CORI Law: The court system notifies private background companies if there is a sealed record on file
New CORI Law: The court system will not notify private background check companies if there is a sealed record on file
Old CORI Law: Employers can inquire about CORI at any point, without preparing an individual for a CORI
New CORI Law: Employers may only inquire about CORI after obtaining a written signature from an applicant authorizing CORI check, and providing a copy of the record before questioning the employee
Old CORI Law: The fine for illegally distributing a person’s private record is up to $500 for adult, $750 for juvenile records
New CORI Law: The fine for illegally distributing a person’s private record is $5,000 for adult and $7,500 for juvenile records
Despite the good intentions and great strides made by lawmakers, loose ends remain. For example:

  • There are significant differences for employers when going direct to the state for CORI, using private in-state background check firms and using private out-of-state background check firms. More to follow on this in another blog posting.
  • There is an apparent conflict with the Federal Fair Credit Reporting Act (FCRA). The FCRA does not restrict private consumer reporting agencies to a seven-year look back if the employee is applying for a job that pays $75,000 per year or more.
  • The law lacks the specificity employers would like in stating which they can safely ask about an applicant’s background during the hiring process.

With the entire law not taking full effect until May, 2012, the legislature has plenty of time to issue clarifications.

Please note that this article does not constitute legal advice. If you have a question about this or any other business law or employment law matter, call or email The Brown Law Firm, LLC for an initial no-cost, no-obligation consultation.

MBA
Boston Bar Assosiation