Massachusetts’ recent reform of the Criminal Offender Record Information (CORI) administrative procedures contains one widely-noted provision, the so-called “ban the box” rule, but contains a number of other new provisions that may have a significantly greater impact on the hiring process.
The “ban the box” provision prohibits employers from requiring job applicants to disclose criminal offenses on written employment applications prior to an interview. (See M.G.L. c. 151B §4 (9 ½)). This new provision supplements other pre-existing limitations on an employer’s ability to make employment decisions based certain misdemeanors or upon criminal proceedings that did not lead to a conviction. (See MCAD Fact Sheet on CORI discrimination here) Prior to this change, employers were permitted to ask applicants about their criminal histories on an initial application. However, employers were not permitted to ask about criminal offenses and proceedings, such as those that did not lead to conviction, that discrimination law prohibits from forming an acceptable basis for an employment decision.
While the “ban the box” provision provides a bright-line rule that gives an added degree of protection to job applicants and is simple for employers to comply with – provided they revise job applications accordingly – the new package of reforms contains other provisions that employers and job applicants should understand. (See Massachusetts CORI update website here for additional information) Some important features of these reforms are the following:
- As of May 4, 2012, CORI will be available online, and certain entities, including employers, will be permitted fee-based access to the CORI database for the purposes of evaluating job applicants;
- Information available to employers will be limited to (1) felony convictions for 10 years following disposition, (2) misdemeanors for 5 years following disposition, and (3) pending charges; however, if any criminal conviction qualifies to be included on an applicant’s CORI report, then all prior convictions will also appear on the report, regardless of when they occurred.
- Employers obtaining information from the CORI database will have to certify that they are authorized to access the CORI, that it is for a legally-valid purpose, and that the applicant has signed an acknowledgement form authorizing the employer to obtain the information.
- An employer who questions an applicant about his or her criminal history, or who makes an adverse hiring decision based upon criminal history must provide the applicant with a copy of the CORI database information.
- A criminal record review board has been created to hear complaints and investigate allegations that (among other issues) an employer failed to provide a copy of an applicant’s CORI record prior to questioning the applicant about his or her criminal history. This does not limit the Massachusetts Commission Against Discrimination’s jurisdiction over claims of discriminatory hiring practices based on criminal history.
While many of the enacted reforms, such as “ban the box,” are relatively straightforward and uncontroversial, it remains to be seen how the online CORI access and related procedures will affect the hiring process and volume of hiring-related litigation.