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/