Published on: November 1, 2010
A comprehensive reform of the Criminal Offender Records Information Statute which limits what information an employer may seek on a job applications went into effect this month. Effective November 4, 2010, employers may no longer request criminal offender record information on the initial written employment application except, however, an employer may inquire about any criminal convictions on an applicant’s application if: (i) the applicant is applying for a position for which any federal or state law or regulation creates mandatory or presumptive disqualification based on a conviction of criminal offenses; or (ii) the employer or an affiliate of such employer is subject to an obligation imposed by any federal or state law orregulation not to employ persons who have been convicted of criminal offenses.
Previously employers were allowed to inquire as to whether the applicant had been convicted of a felony or other certain types of misdemeanors. Employers who currently have questions on their written employment applications concerning criminal offender record information should immediate remove such questions from the applications and make any other necessary revisions for compliance with this change. While the revised CORI statute precludes an employer from requesting criminal record information on its application, it appears that an employer may still question applicants during an interview about whether they have been convicted of a felony or if they have 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). Thus, while employers may no longer ask criminal record information on applications, employers should consider protecting themselves under the new law by implementing proper criminal record questions to be asked during the interview, and consider adding language to an application that provides something to the effect that employment is contingent on the outcome of a background check.
Employers should also be aware that should they request and/or receive CORI information on an applicant, as of November 4, 2010, employers will be required to provide the applicant with a copy of the information prior to asking the applicant about the information during an interview. Further, should the decision to not hire the applicant be based upon information obtained through CORI, the employer must provide the applicant with a copy of the information.
Given these significant changes, condominium association and management company employers should immediately take steps to examine current employment applications, interview procedures and personnel file retention policies in order to make certain that such policies and procedures are compliant with the new law. Thus, employers should seek the advice of counsel to ensure that existing pre-employment and employment practices and procedures are legally compliant and effective.