Legislature Tightens Access to Criminal Records; Adds Employer Protection

Posted by Brad MacDougall on Apr 4, 2018 4:46:57 PM

The Massachusetts Legislature today passed a criminal-justice reform bill that narrows the ability of employers to research the criminal records of job applicants, but also provides legal protection from negligent-hiring claims to companies that are unable to view a sealed criminal record.

ScalesofJusticeVerySmallThe state Senate and House of Representatives both passed the measure with overwhelming majorities. It now goes to Governor Charlie Baker, who has 10 days to sign or veto it.

Inclusion of the negligent-hiring provision grew out of discussions brokered by AIM last summer between sponsors of the bill and employers who rely upon criminal background checks through the Massachusetts Criminal Offender Records Information (CORI) system.  The provision protects employers that conduct background checks and end up hiring individuals with criminal records that are sealed, expunged, or no longer available to employers. 

Key elements of the reform bill for employers include:

  • Accelerates the ability of offenders to seal records from 10 years to seven years for felonies and from five years to three years for misdemeanors.
  • Raises the threshold that defines felony larceny from $250 to $1200, thus classifying more cases as misdemeanors that can be quickly sealed or expunged.
  • Assures that cases dismissed before arraignment do not appear on criminal records.
  • Assures that youthful offender cases tried in juvenile court are treated as juvenile instead of adult CORI.
  • Allows expungement of non-serious cases up to age 21 (both juveniles and young adults).
  • Prevents employers from inquiring about sealed or expunged cases.

Organizations that serve vulnerable populations, such as school systems or nursing homes, would continue to have broader access to criminal records.

AIM members with questions about the status of the legislation should contact Brad MacDougall at Members with questions about how the measure will affect their companies should call the AIM Employer Hotline at 800-470-6277.

Topics: Employment Law, CORI, Human Resources

Reduced Employer Access to Criminal Records Harms Ex-Offenders

Posted by Brad MacDougall on Nov 13, 2017 8:00:00 AM

Update: The Massachusetts House of Representatives passed a comprehensive criminal justice reform bill last week that will narrow employer access to the criminal records of job applicants. AIM believes such restrictions will hurt the very ex-offenders they are designed to help. 

It also seeks to expunge some offenders’ criminal records. Both the House and Senate bills would allow convictions to be sealed after seven years for a felony and three years for a misdemeanor, down from 10 and five years today.

The House bill would also allow someone to seal a conviction for resisting arrest, which currently cannot be sealed.

The House bill expands the ability for someone who had a record sealed to be able to say he has no record in applications for housing or professional licenses.

The House and the Senate will next convene a committee of conference to negotiate the differences in the two pieces of legislation and then send it to Gov. Charlie Baker’s desk.

AIM told members of the state House of Representatives this morning that  the proposed narrowing of employer access to the criminal records of job applicants will reduce employment opportunities for former offenders.

ScalesofJusticeVerySmall.jpgAIM is concerned about language in a criminal justice reform to be debated today that would make access to information through the Criminal Offender Record Information (CORI) more difficult by sealing records and limiting access.

AIM believes the changes would harm the very people those the measure is designed to help.  Without access, employers are left without relevant information about potential hiring decisions. Restricting an employer’s access to information has been shown to hinder job applicants and employer’s ability to maintain a safe workplace. 

The commonwealth’s largest employer association has provided feedback in a number of ways during the current legislative session. AIM sent letters to the Joint Committee on the Judiciary on April 28, 2017 and on July 17, 2017, and also hosted a briefing on this topic with the legislative sponsor and AIM members.

AIM appreciates that those and other conversations resulted in the inclusion of a negligent-hiring provision contained in SECTION 87 subsection 100S of the proposed reform bill.  AIM is also supportive of a provision that would enable the commonwealth to move towards fingerprinting and exchanging data with the National Criminal Information Center (NCIS) to ensure that records are accurate and connected to the correct person.

The Massachusetts Senate approved its own version of criminal justice reform on October 26.

AIM is concerned about the following provisions:

Sections 81-86 and 87: Sealing and Expungement of a Criminal Record: As proposed, the language would reduce the wait time to seal a misdemeanor conviction from five years to three years and a felony conviction from 10 years to seven years.  To address this AIM supports:

  • Amendment #50 to remove sealing and expungement provisions
  • Amendment #132 to allow employers that have employees with access to financial information, cash instruments and vulnerable populations to retain access to five years of misdemeanors and 10 years for felony convictions as currently provided under law
  • Amendment #134, to provide employers with six months to make changes to job applications, internal policies and to conduct training for hiring managers

Section 84 and 87 Job Applications: This language requires employers to amend job applications to acknowledge the candidate’s proposed rights under the expungement provision.  Employers would be required to add the language from section 84 and section 87, which contains similar language for job applications.  To address this AIM supports:

  • Amendment #130 and #131, to retain currently proposed language into one paragraph to address a candidate’s rights regarding sealing and expungement.
  • Amendment #120, to provide employers with six months to a year to fully implement changes in job applications, internal policy documents and to conduct training for hiring managers.

AIM supports amendment #50 to strike the language and amendment #118, which would provide for six months for employers to be in compliance and conduct training for hiring managers.

Sections 49-56, 62: Felony Thresholds: This language will make it challenging for employers to address growing concerns with larceny and ongoing threats related to personal information and credit card fraud.  AIM supports amendment #126, which would strike these provisions.




Topics: Employment Law, CORI, Massachusetts House of Representatives

AIM, Citing Safety Concerns, Opposes Criminal Justice Bill

Posted by Brad MacDougall on Oct 25, 2017 10:00:00 AM

Associated Industries of Massachusetts (AIM) this morning announced its opposition to the state Senate’s criminal justice reform bill because the measure would unduly restrict the ability of employers to ensure the safety of employees, customers and others in the workplace.

ScalesofJusticeVerySmall.jpgThe proposed legislation will, in fact, harm the very people the proponents of the bill seek to help. AIM-member employers met with the legislative sponsor of the bill in July and made clear that candidates for jobs are less successful in achieving gainful employment when employers have less information.

“An employer is more likely to hire an ex-offender when that employer has the information available to make a balanced decision,” said John Regan, Executive Vice President of Government Affairs at AIM.

AIM has a long history of involvement with efforts to balance the need for employers to conduct responsible criminal background checks with the ability of offenders to find employment.

The association helped to forge the 2009 Criminal Offender Records Information (CORI) legislative compromise and worked on the recent regulatory changes to CORI. The business community made significant concessions in the 2009 bill, but the current legislation goes far beyond what employers agreed to in 2009.

Employers believe that criminal background checks are necessary to ensure that the company or institution is complying with state and federal regulations, in addition to international standards. These standards apply for a variety of businesses including hospitals and financial institutions.

Employers also believe that inability to access criminal histories makes companies vulnerable to claims for everything from negligent hiring and failure to meet regulatory obligations to failure to protect client data and failure to protect visitors from harm.

“Employers face significant risk and legal liability for hiring and retaining employees who pose a risk. As written, the legislation does not acknowledge that employers would still be responsible for negligent hiring and negligent retention without a waiver of liability,” Regan said.

The Senate is expected to debate S.2185 and several amendments tomorrow.



Topics: Massachusetts senate, Employment Law, CORI

State Readies New Rules on Background Checks

Posted by Brad MacDougall on Apr 13, 2017 10:55:07 AM

Editor’s note:  The following blog was written by Jean M. Wilson, Barry J. Miller, and Alison Silveira of Seyfarth Shaw, which is a member of AIM’s HR-Labor and Employment Law Committee. 

The Massachusetts legislature passed sweeping reform in May 2012 to the commonwealth’s Criminal Offender Record Information (CORI) law, which regulates the ability of employers to conduct criminal background checks.

ScalesofJusticeVerySmall.jpgNow, prompted by Governor Charlie Baker’s regulatory reform initiative, the Department of Criminal Justice Information Services (DCJIS) has new rules for the CORI law.  Several of these changes will require employers to alter their approach to criminal history checks:

  1. Who is an Employee? The regulations expand the definition of employee to include not only traditional employees and volunteers, but also contractors, subcontractors, vendors, and special state, county or municipal employees. DCJIS has, in effect, broadened the definition of employee well beyond its traditional meaning, and in a manner that is at odds with the definition of this term under other state and federal laws, leading to possible uncertainty for employers

  2. What is CORI? The prior regulations did not define “Criminal Offender Record Information,” beyond a list of examples of information included or excluded from the system.   The regulations now define CORI, but the definition leaves uncertainty as to what information, outside of that specifically provided by DCJIS, is inlcuded.  The regulations also now specifically exclude from the definition of CORI information related to criminal proceedings that were initiated against an individual before the individual turned 18, unless the individual is adjudicated as an adult.  Prior to the revisions, this threshold was 17.

  3. “Need to Know” List and New iCORI Agency Agreement - The revised regulations require employers to enter into an iCORI Agency Agreement prior to obtaining and/or renewing electronic access to the iCORI system. The iCORI Agency Agreement will, at a minimum, include the employer’s representation that:  (1) it will comply with the CORI laws and regulations; (2) it will maintain an up-to-date “need to know” list of staff that the employer has authorized to request, receive or review CORI information and to provide all staff on the “need to know” list with all CORI training materials; (3) it will only request the level of CORI access authorized under statute or by the DCJIS; and (4) it will be liable for any violations of the CORI law or regulations, and that individual users of the employer’s iCORI account may also be liable for violations of the CORI law or regulations.  The DCJIS has not yet issued the iCORI Agency Agreement. 

  4. CORI Acknowledgment Forms - DCJIS has made several changes to the regulations that affect the collection, use and destruction of CORI Acknowledgment Forms.

  5. Storing CORI in the Cloud - DCJIS now permits employers to store CORI using cloud storage methods.  DCJIS requires employers using cloud storage to have a written agreement with the provider and that the storage method provide for encryption and password protection.

  6. Additional Information for Pre-Adverse Action Notices - Employers who contemplate adverse action against an employee because of information in a CORI report obtained through DCJIS are currently required to provide the subject of that report with certain information, including identifying the information in the report that is the basis for potential adverse action. 

  7. Obtaining CORI from Background Screening Companies: The regulations continue to allow background screening companies to obtain CORI on behalf of employers, but maintain the restrictions on the storage of this information that led many background screening companies to cease providing CORI.  Specifically, the regulations continue to prohibit background screening companies from electronically or physically storing CORI results, unless the background screening company is authorized by the employer to act as the decision maker. 

Employers should work with their legal counsel and background check providers to ensure that their procedures and forms comply with these new changes. 

Massachusetts businesses should also be aware that there are legislative proposals regarding Criminal Justice reform and other specific proposals that would impact Criminal Offender Record Information (CORI) laws. 

Want to learn more about the new CORI regulations or the pending legislation? Please contact Brad MacDougall, Vice President of Government Affairs at AIM.  Based on interest, AIM may host a webinar to provide members with greater information.

Topics: Employment Law, Massachusetts employers, CORI

Tips and Traps with New Massachusetts Criminal Record Law

Posted by Christopher Geehern on Jan 24, 2011 10:19:00 AM

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.

CORIAs 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

Topics: Associated Industries of Massachusetts, AIM, Employment Law, Massachusetts employers, CORI

CORI Reform Forces Many Employers to Change Job Applications

Posted by Erica Murphy on Aug 25, 2010 10:17:00 AM

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.

CORI ReformCome 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. 

Topics: Associated Industries of Massachusetts, AIM, CORI, Human Resources

Criminal Record Access Overhaul Has Implications for Hiring Practices

Posted by Brad MacDougall on Aug 2, 2010 10:48:00 AM

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.

Please Continue Reading

Topics: Massachusetts Legislature, Associated Industries of Massachusetts, AIM, CORI, Deval Patrick

Proposed Criminal Records Overhaul Works for Massachusetts Employers

Posted by Brad MacDougall on Jun 30, 2010 11:14:00 AM

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.

Topics: Massachusetts Legislature, Employers, AIM, Employment Law, CORI

Massachusetts House Passes Balanced CORI Reform

Posted by Christopher Geehern on May 27, 2010 4:48:00 PM

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."

Topics: Massachusetts Legislature, Employment Law, CORI, House Speaker Robert DeLeo, Labor, John Regan, Policy

AIM Applauds Focus on Private Sector in Senate Budget Debate

Posted by Brad MacDougall on May 26, 2010 3:07:00 PM

"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.

Topics: Public Sector, Massachusetts state budget, Senator Panagiotakos, AIM, CORI, Senate President Therese Murray, Private Sector

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