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Massachusetts: New CORI Changes Further Limit Pre-Employment Inquiries

By Amelia J. Holstrom - Skoler, Abbott & Presser, P.C.

December 3, 2018

In 2010, then Massachusetts Governor Deval Patrick signed a bill that made it unlawful for most employers to request criminal information on initial employment applications.   Prior to signing the legislation, employers regularly asked applicants on initial job applications whether they had any criminal convictions.  Under the law, often referred to as “ban the box,” such inquiries are unlawful except for in two very limited circumstances: 1) when a federal or state law or regulation indicates that an applicant will be automatically disqualified for a position based on a criminal conviction; and 2) when a federal or state law or regulation requires an employer not to employ someone who has criminal convictions.   As a result, most employers in Massachusetts can no longer include questions about criminal history on their job applications.

The law, however, was limited in its application.  Although employers could not request criminal information on initial employment applications, employers were generally permitted to ask about criminal history information at any other time in the interview and hiring process, with certain exceptions.  Employers could never ask about: 1) arrests that did not result in a conviction; 2) first convictions for drunkenness, simple assault, speeding, minor traffic violations, affray or disturbing the peace (all misdemeanors); 3) convictions for misdemeanors that occurred five or more years prior to the date of the employment application, unless the incarceration ended less than five years prior; and 4) sealed records.

Further amendments to the Criminal Offender Record Information (CORI) law, were enacted in April 2018 and became effective October 13, 2018.  Specifically, in addition to the above, the amendments reduce the “look-back” period on misdemeanor convictions from five years to three years, prohibit an employer from asking about an expunged record, and require that an employer seeking permissible criminal history information on any form, include the following statement:

An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 may answer ‘no record’ with respect to an inquiry herein relative to prior arrests, criminal court appearances or convictions. An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 may answer ‘no record’ to an inquiry herein relative to prior arrests, criminal court appearances, juvenile court appearances, adjudications or convictions.

As mentioned, some employers in Massachusetts, such as banks, are exempt from ban the box.  The October 2018 amendments don’t make any changes to that provision of the law.  As a result, those employers may still ask for certain criminal history information on the initial job application.  Employers who are permitted to seek information about criminal history on the initial job applications should limit their inquiries to the particular types of offenses that would disqualify the applicant from employment.  Additionally, employers who are permitted to seek criminal history information on their written application, must include the above statement on the application, as well as the following additional statements:

An applicant for employment or for housing or an occupational or professional license with a sealed record on file with the commissioner of probation may answer ‘no record’ with respect to an inquiry herein relative to prior arrests, criminal court appearances or convictions. An applicant for employment or for housing or an occupational or professional license with a sealed record on file with the commissioner of probation may answer ‘no record’ to an inquiry herein relative to prior arrests or criminal court appearances. In addition, any applicant for employment or for housing or an occupational or professional license may answer ‘no record’ with respect to any inquiry relative to prior arrests, court appearances and adjudications in all cases of delinquency or as a child in need of services which did not result in a complaint transferred to the superior court for criminal prosecution; and

An applicant for employment or for housing or an occupational or professional license with a sealed record on file with the commissioner of probation may answer ‘no record’ with respect to an inquiry herein relative to prior arrests or criminal court appearances.

Massachusetts employers should pay careful attention to these changes, update their employment applications and forms accordingly, and re-train anyone responsible for interviewing and hiring applicants about the recent changes.

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