Published on: February 14, 2012
In August 2010, Massachusetts enacted a statute that set in motion two waves of reform in the state’s Criminal Offender Record Information (“CORI”) system. Employers already have had at least fifteen months to adjust to the “ban the box” reform that became effective in November 2010. See M.G.L. c. 151B, §4(9½) (amending the Massachusetts Fair Employment Practices Act to bar requests for criminal offender information on initial written employment applications, unless a statutory exception applies). The second wave of CORI reforms is scheduled to take effect on May 4, 2012, however. One implication of this is that employers need to be preparing for the new rules now. Highlights of the new CORI system from an employer’s standpoint will include the following.
1. “Criminal offender record information” will have essentially the same meaning.
In Massachusetts, “criminal offender record information” will be defined as follows:
records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any consequent proceedings related thereto. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information concerning persons who have attained the age of 17 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 17; provided, however, that if a person under the age of 17 is adjudicated as an adult, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration.
M.G.L. c. 6, § 167.
2. As before, a criminal record that has been sealed will not be accessible in the typical employment situation.
Anyone with a criminal record can apply to have the record sealed after a prescribed waiting period, and if the record is sealed, it will be accessible only in very limited circumstances far removed from the usual employment context. M.G.L. c. 276, § 100A. Moreover, when the Massachusetts Department of Criminal Justice Information Systems (“DCJIS”) responds to an inquiry about a sealed record from an authorized person other than a law enforcement agency, a court, or an appointing authority, it will be required to “report that no record exists.” Id.
In general, the waiting period before sealing can occur will be ten years after disposition of a felony conviction (including any period of incarceration or custody), five years after disposition of a misdemeanor conviction (including any period of incarceration and custody), and for as long as any criminal charge is pending (including any period in which the case is continued without a finding until such time as the case is dismissed). But an intervening felony or misdemeanor conviction will “reset the clock” for the waiting period and make prior felony and misdemeanor conviction records available for the entire period that the subject’s most recent conviction record remains available for release. Id.
Also, certain sex offenses will require a waiting period of fifteen years following their disposition (including periods of supervision, probation or incarceration and for as long as the offender is under a duty to register). And a sex offense of a person classified as a Level 2 or Level 3 sex offender will not be eligible for sealing at all. Id.
Even after the prescribed waiting period has expired, a subject’s record will not be sealed automatically. Instead, a subject will have to complete a form furnished by the Department of Criminal Justice Information Services (“DCJIS”) and signed under penalties of perjury to request sealing. The DCJIS commissioner will comply with the request if the waiting period has been satisfied, if the request form indicates that there have been no other convictions or imprisonments within certain prescribed periods, and if the person’s record does not include convictions of offenses to which the sealing rules do not apply (e.g., certain crimes involving firearms, ammunition, public justice, or public officials and employees). Id.
3. A limited amount of criminal offender information in an unsealed record will continue to be available to almost anyone (including almost any customer or client) who requests it.
The DCJIS will maintain the state’s criminal offender information in an electronic database. M.G.L. c. 6, § 172(a). By making a written request to the DCJIS, “any member of the general public” will be able to access a specific individual’s information in the database concerning any (a) felony conviction punishable by imprisonment for five years or more; (b) conviction resulting in a sentence of imprisonment, until the conclusion of any incarceration, probation, or parole; (c) felony conviction, until two years after release from custody; and (d) misdemeanor conviction, until one year after release from custody. M.G.L. c. 6, § 172(a)(4). See also M.G.L. c. 6, § 172(a) (1), (a)(2), (a)(3), (a)(5) – (a)(29) (specifying other categories of persons authorized to obtain criminal offender information). Moreover, convictions for murder, voluntary manslaughter, involuntary manslaughter, and sex offenses punishable by incarceration in state prison will remain in the CORI database indefinitely and be available to authorized requestors unless sealed under the rules discussed above. M.G.L. c. 6, § 172(b).
The above provisions necessarily mean, among other things, that customers or clients of an employer will themselves have access to criminal offender information about the employer’s employees. As was the case under previous law, many employers may want to find out about their employees’ records first.
4. An employer will be able to obtain more criminal offender information than a mere member of the general public if the information is sought for the purpose of evaluating a current or prospective employee and if the subject signs an acknowledgement of consent.
Employers generally will have a “standard” level of access to the CORI database that will allow them to obtain information about a current or prospective employee’s (a) felony convictions for ten years after disposition (including any period of incarceration or custody), (b) misdemeanor convictions for five years after disposition (including any period of incarceration or custody), and (c) pending criminal charges (including cases continued without a finding until such time as the case is dismissed). Employers with an additional need for criminal offender information because of specific statutory, regulatory, or accreditation requirement, however, will be afforded the higher degree of access. Information about prior misdemeanor and felony conviction records will be available to the employer for the entire period that the subject’s last conviction record is available. M.G.L. c. 6, § 172(a)(3). Information about convictions for murder, voluntary manslaughter, involuntary manslaughter, and sex offenses punishable by incarceration in state prison will remain in the CORI database indefinitely and be available to authorized requestors unless the record is sealed. M.G.L. c. 6, § 172(b).
To obtain the criminal offender information authorized for an employer, the requestor must certify under penalties of perjury that (a) the requestor is an authorized designee of the employer, (b) the request is for the purpose of evaluating a current or prospective employee, (c) the subject has signed an acknowledgement form authorizing the requestor to obtain the subject’s criminal offender record information, and (d) the requestor has verified the identity of the subject by reviewing a form of government-issued identification. M.G.L. c. 6, § 172(c).
5. An employer with an applicant’s criminal offender information must provide it to him in two situations.
In connection with any decision regarding employment, a person in possession of an individual’s criminal offender record information must provide the applicant with it prior to questioning the applicant about it. This requirement exists without regard to whether the record was obtained from the DCJIS or any other source. M.G.L. c. 6, §§ 171A, 172(c).
Also, an employer who makes a decision adverse to an applicant on the basis of his criminal history will have to provide the applicant with the criminal history in the employer’s possession. This, too, is an absolute requirement. The requirement exists without regard to how or where the employer obtained the criminal history record. If, however, the person with the subject’s criminal history already has provided it to the subject as a prelude to asking questions about it, then a second copy need not be provided. M.G.L. c. 6, §§171A, 172(c).
6. Wrongful failure to provide criminal history information to an applicant may subject the offending person to administrative investigation, hearing and sanctions.
The Criminal Record Review Board (“CRRB”) will be a division of the DCJIS able to hear complaints and investigate allegations that an employer that has requested or received criminal offender information failed to provide the required information to the subject. The CRRB will have authority to impose fines up to $5000 for each knowing violation. M.G.L. c. 6, § 168(a), (b).
7. Only in limited circumstances will an employer be allowed to disseminate criminal offender information.
In some situations, a subject might give his consent to an employer to the sharing of his criminal offender information with another party. There also are limited circumstances in which the information can be shared with government entities. In addition, an employer requesting criminal offender information may share it with individuals “within the requesting entity” who have a need to know the contents of the criminal record to serve the purpose for which the information was obtained. But otherwise, it is unlawful for an employer (or any other requestor) to disseminate criminal offender information. M.G.L. c. 6, § 172(f).
8. Employers will have additional documentation, record retention, and record disposal obligations.
Employers and/or their agents will have at least four new obligations pertaining to documentation. First, an employer or employer’s agent who requests criminal offender information for the purpose of evaluating a current or prospective employee will have to maintain a subject’s consent acknowledgement form for a period of one year from the date the request for information is submitted. These forms will be subject to audit by the state. M.G.L. c. 6, § 172(c).
Second, an employer (or any other person) conducting five or more criminal background investigations per year must have a written CORI policy that meets prescribed standards. This requirement exists without regard to whether criminal offender information is obtained from DCJIS. The written policy must provide that the requestor will (a) notify the applicant of the potential adverse decision based on the criminal offender record information; (b) provide a copy of the criminal offender record information and the policy to the applicant; and (c) provide information to the applicant concerning the process for correcting a criminal record. M.G.L. c. 6, § 171A.
Third, an employer who disseminates criminal offender information must maintain a secondary dissemination log for a period of one year following the dissemination. The log has to include (a) name of subject, (b) date of birth of the subject, (c) date of the dissemination, (d) name of person to whom it was disseminated, and (e) purpose for the dissemination. M.G.L. c. 6, § 172(f).
Fourth, an employer who requests criminal offender information will have to have a policy that ensures timely disposal of the information. Unless otherwise provided by law or court order, a requestor will not be allowed to maintain a copy, electronic or otherwise, of requested criminal offender record information obtained from the DCJIS for more than seven years from the last date of employment or from the date of the final decision of the requestor regarding the subject. M.G.L. c. 6, § 172(f).
9. Some violations of CORI law can have criminal sanctions.
It will be unlawful to request or require that a person provide a copy of his criminal offender information in any way not authorized by the new CORI law. M.G.L. c. 6, § 172(c). Anyone who knowingly requests, obtains or attempts to obtain criminal offender information under false pretenses, knowingly communicates or attempts to communicate criminal offender information to any other individual or entity except in accordance with the provisions of the law, knowingly falsifies criminal offender information or any related records, or requests or requires a person to provide a copy of his or her criminal offender record except as authorized by the law, “shall for each offense be punished by imprisonment in a jail or house of correction for not more than 1 year or by a fine of not more than $5,000 or by both such fine and imprisonment, and in the case of an entity that is not a natural person, the amount of the fine may not be more than $50,000 for each violation.” M.G.L. c. 6, § 178.
10. Employers will have two new protections.
Under the new law, two statutory defenses are established. First, an employer who follows proper procedures and makes a hiring decision within 90 days of receiving criminal offender information from the state will not be liable for negligent hiring practices by reason of relying solely upon information from the state that turns out to be erroneous. M.G.L. c. 6, §172(e).
Also, no employer will be liable for discriminatory employment practices for failing to hire a person on the basis of criminal offender information that contains erroneous information requested and received from the state, provided that the hiring decision is made within 90 days of receiving the criminal offender information and the employer otherwise follows proper procedures.