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September 23, 2010

Massachusetts Restricts Criminal History Inquiries on Employment Applications and Mandates Notification of Negative Reports Placed in Personnel Files

On August 6, 2010, Massachusetts Governor Deval Patrick signed into law legislation that significantly overhauled Massachusetts' Criminal Offender Record Information ("CORI") law. The new law affects an employer's use of criminal histories in the hiring process and requires employers to maintain written policies regarding criminal background investigations. All employers with employees in Massachusetts must be aware of these new requirements. With one critical exception regarding employment applications, the new law takes effect on February 6, 2012.

Under the new law, employers will be prohibited from requesting prospective employees' criminal history and background on any "initial written application form," including information about arrests, criminal charges and incarceration. The only exceptions are for: (1) positions for which a federal or state law disqualifies an applicant based on a conviction of certain offenses; and (2) employers who are subject to an obligation under federal or state law not to employ persons who have been convicted of certain offenses. Unlike the rest of the law, the provision regarding permissible inquiries on initial employer application forms takes effect on November 4, 2010.

The new law does not prohibit an employer from obtaining a prospective employee's criminal history from Massachusetts' CORI database. However, employers will not be able to receive information regarding felony convictions that have been closed for more than ten years and misdemeanor convictions that have been closed more than five years.

To obtain a CORI report, the employer must certify that the requester is an authorized designee of a qualifying entity, that the request is for a purpose authorized by the amendment, and that the subject of the report has signed an acknowledgement form authorizing the requester to obtain the information.

The law also requires all employers who conduct five or more criminal background investigations a year to have a written criminal offender record information policy. The written policy must include language notifying applicants of the following: (1) that there is a potential for an adverse decision based on the criminal background investigation; (2) that the employer will give copies of the policy and the information obtained during the criminal background investigation to the applicant; and (3) the steps applicants can take to correct their criminal record.

Employers are further required to destroy CORI information that the employer has retained for more than seven years from the last day of employment, or more than seven years from the date a decision was made to not hire an applicant.

The full statute should be consulted for a complete review of applicable changes.

On August 5, 2010, Governor Patrick also signed into law an economic stimulus measure that contained a provision directly impacting how employers maintain personnel records in Massachusetts.

The bill, which amends the personnel records statute, Mass. General Laws. ch. 149 section 52C, requires an employer to notify an employee within ten days of the employer placing in the employee's personnel file any information that may be used to negatively affect the employee's qualification for employment, promotion, transfer, or additional compensation, or that may possibly subject the employee to disciplinary action. An employer receiving a written request from an employee must provide the employee with an opportunity to review the employee's personnel file within five business days of such a request. An employee also must be given a copy of the employee's personnel record within five business days of making such a request, in writing, to the employer. The amendment further revises the personnel records statute to provide that an employer may limit an employee's review of his or her personnel file to twice in a calendar year, although an employee's review of any newly-added negative information does not count toward the twice-a-year limit.

This amendment is retroactive and took effect August 1, 2010.

If you have any questions or require our assistance in reviewing your policies or conducting management training, please contact the Hiscock & Barclay lawyer with whom you normally work or any attorney in our Labor & Employment practice area.


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