Massachusetts: New Law Limits When Employers Can Ask Job Applicants About Convictions
Come November 4, Massachusetts will no longer allow employers to ask applicants to check the box that asks whether they have a criminal record when filling out a job application.
Come November 4, Massachusetts will no longer allow employers to ask potential interview candidates to indicate on a preliminary written job application whether they have a criminal record. The new regulation comes as part of anti-crime reform package signed early this month by Gov. Deval Patrick .
The only employers excluded from the regulation are those that are barred by federal or state law from hiring an employee with a criminal conviction or filling a certain position with an ex-convict.
Beyond restricting employers from inquiring about prior criminal convictions during the written (pre-interview) application process, the law will reform the state's Criminal Offender Record Information (CORI) system and allow employers to query CORI's online database to do their due dilligence on prospective hires.
"Under the new law, all employers, licensing bodies, housing providers, and volunteer organizations will, for a fee, have access to a new database that lists only convictions or pending charges," reports The Boston Globe. "If there are no subsequent offenses, most felony convictions will disappear from the database 10 years after a sentence is served and misdemeanor convictions five years after that. Previously, felonies could be sealed after 15 years and misdemeanors after 10, but that has required a court order, which is rare. Convictions could show up indefinitely in the reports from private companies."
Murder and sexual offense convictions, however, can never be sealed. The CORI system will also not collect and store acquittals or continuance-without-a finding-rulings , according to Clive McFarlane, a columnist for the Worchester Telegram & Gazette. The CORI reforms, however, do not go into effect until February 6, 2012.
Previously only 3 to 5 percent of employers—mostly schools and nursing homes—had access to the CORI system; others had to rely on private background investigations, which often list charges and acquittals and sometimes are inaccurate, notes the Globe. The reform changes all that and will provide employers with a one-stop-shop to investigate whether a job applicant has a criminal past.
The logic behind the move is to give ex-cons the chance to get a foot in the door and interact with possible employers . “What we’re trying to do is to get employers . . . to have conversations with individuals as individuals, not just weed people out wholesale because of a box they’ve checked on their initial job application," John Grossman, a state public safety undersecretary who oversees the board that manages the CORI system, told The Boston Globe.
The move has been hailed by law enforcement and other proponents as one way to fight recidivism among former convicts who often cannot find stable employment after release from prison. “What we do with this bill is reaffirm an old idea inherent in our American character, that everybody deserves a second chance," Patrick said during the signing ceremony on August 6.
But while the reform gives ex-cons a better chance at making a positive first impression, that doesn't mean employers have to look past their criminal history.“Employers can still decide not to hire somebody if they have a criminal record,’’ according to Grossman.
The law also creates oversight and accountability during the criminal background investigation process, but these regulations also do not go into effect until February 2012. From then on, employers who conduct more than five background checks a year "must maintain a written criminal offender record information policy," according to law firm Fisher & Phillips LLP . As part of the policy, employers must notify the applicant that they conducted a background investigation, provide a copy of CORI policy and the investigation's results, and provide the applicant with the information necessary to correct his criminal record if any information is incorrect.
Employees are also empowered to be proactive under the CORI reform . "A current or prospective employee will be able to obtain from the Department of Criminal Justice Information Services a log listing the names of persons who requested his or her CORI record, the date of the requests, and the certified purpose of the requests," according to Seyfarth Shaw LLP.
The law also protects employers who base their hiring decisions on CORI. Employers who either hire or pass over an applicant within 90 days of receiving a CORI record will receive protection from any lawsuits based on erroneous information or negligent hiring, according to Fisher and Phillips.
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