Massachusetts Employers Alert: New Law Impacts Application Process
Effective November 4, 2010, employers in Massachusetts may no longer inquire into an applicant’s criminal background on an initial employment application. Employers may still, however, request information regarding an applicant’s criminal history at any point later in the application process. Only employers that, under federal or state law, are barred from hiring employees with criminal backgrounds for specific jobs are exempt from Massachusetts’ new prohibition.
Under the same law, beginning in February 2012, employers conducting more than five criminal background checks a year will be required to establish a written policy addressing the use of criminal background checks for job applicants. The mandated policy must advise applicants of potential adverse employment decisions based on criminal background information obtained by the employer. Employers will be required to provide applicants with a copy of the policy, as well as any criminal background information obtained during the application process (whether through Massachusetts’ Criminal Offender Record Information (“CORI”) system or from other sources) and information regarding how the applicant may correct an inaccurate criminal record.
Employers in Massachusetts will still be permitted to make adverse hiring decisions based on an applicant’s criminal history, assuming the above requirements have been met.
Employers are currently permitted to request criminal background information from Massachusetts’ CORI system. Starting in February 2012, such requests will require an applicant’s signature. Information available through Massachusetts’ CORI system will be limited to felony convictions that have been closed for less than ten years and misdemeanors closed for less than five.
When an employer has obtained information regarding an applicant’s criminal background using Massachusetts’ CORI system, the employer must destroy all electronic and hard copies no later than seven years following an adverse hiring decision. If an employer hires an individual for whom the employer received a CORI report—or if the employer requested a CORI report after an individual was hired—all electronic and hard copies of such report must be destroyed no later than seven years after the employee’s last date of employment.