Editor’s Note: The following article was written for Business Insider by David Wilson, Esq., a labor and employment lawyer at AIM member Hirsch Roberts Weinstein LLP. Wilson will be among the presenters at an upcoming series of AIM seminars entitled “Massachusetts CORI Reform and Effective Background Checks” beginning Wednesday.
As the new Massachusetts Criminal Offender Record Information (CORI) law goes into effect, traps for the unwary employer abound. Here are five potential pitfalls:
1. Applicant applies for job by submitting resume and cover letter, but does not complete a job application. Employer decides to interview applicant based on his resume. During interview employer wants to ask applicant if he or she has ever been convicted of a crime.
Trap: Employer may not inquire about:
- Arrests that did not result in convictions;
- Criminal detentions or dispositions that did not result in convictions;
- First convictions for drunkenness, simple assault, speeding, minor traffic violations, affray or disturbing the peace;
- Conviction for a misdemeanor more than five years old; or
- Sealed records and juvenile offenses.
Tip: If you like the employee after the interview, give him or her the legal questions you can ask under Massachusetts Law.
2. Before Applicant’s interview employer has a criminal background check done and learns that applicant pled guilty to a DWI four years ago. Employer wants to ask applicant about it.
Trap: Employer may not ask without showing background results of information to the applicant.
Tip: If you are going to ask about an applicant’s criminal record, give her or him a copy of what you have with time to review it first.
3. Employer asks applicant to request a copy of applicant’s own CORI and bring it to the job interview.
Trap: this is a violation of the CORI law.
Tip: Employer should get applicant’s permission to get CORI record and follow the proper procedure to do so.
4. Employer conducts six CORI checks a year.
Trap: Employers who conduct five or more criminal background investigations annually are required to maintain a written policy.
Tip: Employer has until May 2012 to put in place a policy that will: (i) notify applicant of potential for an adverse decision based on CORI; (ii) provide a copy of applicant’s CORI and employer’s policy to applicant; and (iii) provide information for correcting a criminal record.
5. Employer makes decision to not hire applicant based on applicant’s CORI and tells applicant so.
Trap: Employer in possession of a job applicant’s criminal offender record information must provide the individual with a copy of the record.
Tip: Because CORI records are sometimes inaccurate, if an adverse decision is made on the basis of the criminal record, the applicant must be shown the CORI relied upon so applicant can check it for accuracy.
Dave Wilson blogs regularly with his colleagues on THE BLEG BLOG at http://blog.hrwlawyers.com/
In the iconic 1960s folk song Alice’s Restaurant, folk singer Arlo Guthrie is about to be drafted when a military recruiter asks, “Have you ever been arrested?” The question provokes a detailed retelling of Guthrie’s arrest for littering one Thanksgiving in Stockbridge, Massachusetts.
Come November, most Massachusetts employers will no longer be able to ask prospective employees about their criminal histories – at least on job applications. The new Massachusetts criminal records reform law prohibits employers from asking questions on an “initial, written application form” about an applicant’s “criminal offender record information,” which includes criminal charges, arrests, and incarceration.
That means you have to replace your employment application if it contains any language related to criminal history, such as:
Have you ever been convicted of a felony? If yes, give dates and details of conviction.
Have you been convicted of a misdemeanor within the past five years other than a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace?
These questions have been legal and commonplace on Massachusetts employment applications for years, but the rules will change when the new law takes effect in November.
Governor Patrick signed the Criminal Offender Record Information (CORI) reform on August 6. The provision governing employment applications amends a portion of the Massachusetts Fair Employment Practices Law that allowed questions about felony convictions and about misdemeanor convictions not protected from disclosure.
The only exceptions to the initial job application requirements in the CORI reform law are for (1) positions for which a federal or state law, regulation, or accreditation disqualifies an applicant based on a conviction; or (2) employers who are subject to an obligation under a federal or state law or regulation not to employ persons who have been convicted.
The CORI reform law creates many additional questions for employers regarding the hiring process. At this time, the Massachusetts Executive Office of Public Safety and Security is charged with creating rules and regulations on CORI reform, which will help to answer many outstanding questions. Stay tuned for additional detailed information and guidance.
Please call AIM’s HR Hotline at 800-470-6277 with questions about the new criminal records law. AIM also offers legally compliant job applications customized with your company logo.
The Massachusetts Legislature passed a conference committee report Saturday that overhauls the Criminal Offender Register Information (CORI) system used by employers to access the criminal histories of job applicants. AIM urges Governor Deval Patrick to sign the legislation, which balances the needs of employers and offenders on what has been a complex and contentious issue.
The CORI debate began three years ago when Governor Patrick announced a reform proposal that drew immediate criticism from employers concerned about their ability to maintain the safety of customers and employees in the workplace. AIM has since worked with employers and state policymakers to develop an approach that maintains job opportunities for ex-offenders but also protects the ability of employers to make informed hiring decisions.
The final CORI reform contains numerous elements suggested by AIM, including one to provide negligent-hiring protection for employers relying on the accuracy of the Commonwealth's CORI system.
Employers know that the CORI system is broken. Budget cuts have eroded the reliability, accuracy and security of the system, which can take up to six weeks to fulfill one record request from an employer. A 2009 report by State Auditor Joseph DeNucci detailed concerns with CORI that ranged from incomplete records or ones that were not always updated to reflect felony convictions, such as murder or failure to register as a sex offender.
The legislation currently before the governor provides critical technology upgrades required to provide employers with instantaneous access to records. The bill also changes the manner in which employers utilize background checks during the hiring process.
Key CORI reform provisions that AIM supports:
- Accuracy, reliability and security of records though IT upgrades: An updated database and a secure Internet portal ensure immediate access to CORI information and allows officials to validate accurate data and correct inaccurate data. The system will also protect personal information contained within these records as required by state current statute, M.G.L. 93H and 93I, defining the Commonwealth’s data security laws.
- Negligent hiring protection: No employer shall be liable for discriminatory employment practices for the failure to hire a person on the basis of criminal offender record information that contains erroneous information requested and received from CORI. The liability protection is available to employers who make a hiring decision within 90 days of obtaining the criminal offender record information.
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AIM urged a legislative conference committee yesterday to endorse a proposed overhaul of the system through which some employers access the criminal records of job applicants.
The conference committee is addressing differences between House and Senate bills related to the state's criminal offender record information (CORI) as a part of a larger crime package. In a letter to committee members, AIM said that key elements of the House and Senate bills strike an acceptable balance between the need for employers to maintain safe workplaces and the desire of offenders to find jobs.
The House and Senate versions (H.4712 and S.2220) address underlying problems with the CORI system.
AIM believes that employers must have the ability to make hiring decisions unencumbered by overreaching and burdensome laws and regulations. The reform bills contain provisions that protect employers from liability when in compliance with the law and allow for the continued use of aggregators (third-party CORI users).
A "ban the box" provision preventing employers from asking about criminal records as part of the initial job application exempts employers who are statutorily prohibited from hiring ex-offenders, and allows inquiries later in the process for others.
AIM's support the provisions of CORI reform that achieve the following:
- Ensure the accuracy of Criminal Offender Record Information (CORI)
- Provide employers with an affirmative defense against liability when using CORI
- Upgrade the database systems necessary to ensure timely access of CORI information and to validate and provide for the correction of inaccurate data
- Upgrade database system and to allow for national background searches tied to fingerprinting.
- Increase the membership of the criminal history system's board to include actual system users as well as representatives with workforce training experience.
AIM thanks the Massachusetts House of Representatives, who amended and passed a bill (H.4712) Wednesday evening on a 138-17 vote to reform the state's Criminal Offender Record Information (CORI) system to the benefit of both job applicants and employers.
The House CORI measure reduces the sealing time for felonies from 15 years to 10, and for misdemeanors from 10 years to five and preserves the current availability of records to the public and to law enforcement. It includes much-needed improvements in the operation of the CORI system to broaden access and improve accuracy and response times.
Significant for employers are provisions to protect them from liability when in compliance with the law and allowing for the continued use of aggregators (third-party CORI users). A "ban the box" provision preventing employers from asking about criminal records as part of the initial job application exempts employers who are statutorily prohibited from hiring ex-offenders, and allows inquiries later in the process for others.
"The legislation recently approved by the Senate (S.2220) and now the House achieves the goals of CORI reform - a more accurate and efficient system that enhances employment opportunities while maintaining appropriate protections for public and workplace safety," said John Regan, AIM's Executive Vice President for Government Affairs. "We commend the House for attending to and successfully balancing the very real concerns of all stakeholders, including the employer community. AIM will continue to work with legislators in the House and Senate as the two proposals move towards a conference committee between the two chambers.
In particular, we thank Speaker Robert DeLeo, Representative Charles Murphy, Chairman of the House Ways & Means, Representative Eugene O'Flaherty, House Chairman of the Joint Committee on the Judiciary and Minority Leader Bradley Jones for their contributions to reaching a satisfactory resolution to what has been a complex and contentious issue."
"We have come to a point where the private sector is having great trouble affording the public sector" - Read below to find out which Senator made this statement.
With less than 67 days remaining in the legislative calendar ending July 31, today is a busy one for members of the General Court. This afternoon the Senate begins debate over the Fiscal Year 2011 budget while the House considers a bill H.4703 to update an antiquated criminal history records administrative agency. Yesterday, the Governor signed a supplemental appropriation which includes $9.5 million for the state Workforce Training Fund for Fiscal Year 2010.
The $27.88 appropriation bill now before the Senate, which cuts more than $750 million from the level required to maintain state services in fiscal year 2011, adds $53 million to the House version, while proposing no new taxes, no withdrawals from the state Rainy Day Fund and maintains the half-point reduction in the corporate excise tax rate. Important to employers are 83 amendments that AIM's letter to the Senate highlighted out of the total 800 amendments under consideration.
AIM would like to commend Senate President Murray and Chairman Steven Panagiotakos and members of the Ways and Means Committee for advancing a prudent spending plan for the Commonwealth. We cannot improve on the sentiments of Senator Panagiotakos, who wrote in his cover letter accompanying the release of the bill:
"Just as Massachusetts families have had to tighten their belts and do without, so will the branches, agencies, departments, commissions and programs that make up our state government. At all levels of state and municipal government we will be challenged to do more with less.
Unfortunately, this will be the case for the foreseeable future. We have come to a point where the private sector is having great trouble affording the public sector. It will take large increases in private sector economic development and job creation to change this conflicting paradigm.
Although state government cannot create private sector investments and jobs, it can create the fertile field for them to grow. The challenge is, therefore, job creation. Without it, we stay mired in the mud of a recession. With it, we have a clear road to a better future for all."
AIM believes that the sentiments expressed above must guide every decision that touches the state's business climate and we applaud Senator Panagiotakos for expressing this so clearly and eloquently.
AIM is monitoring the amendment process in the Senate as well as the CORI debate in the House and will provide updates on the progress of these bills. Watch the House and Senate debates live by clicking here.