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Background Checks on Applicants – Massachusetts Law Offers Certain Protections

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Background Checks on Applicants – Massachusetts Law Offers Certain Protections

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Employment Background Checks – Massachusetts Law

Background checks are often used by employers as part of the pre-employment screening process. Employers may be able to access certain information about applicants through the use of criminal background checks and credit checks, but the amount of information they will be able to access will depend on whether the particular employer is a public or private organization, the type of industry, and the nature of the position. In this article we will discuss the use of criminal records in the interview and pre-employment screening process; our next article will discuss the use of credit checks.

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Prospective employees with criminal records may face some challenges in the employment process. However, Massachusetts provides applicants with criminal records fairly strong protections when it comes to obtaining and using criminal record information in the employment process.

It is important to note that, although many employers rely heavily on background checks, such as criminal records and credit checks, they may also access additional information about applicants through publicly available sources of information.

Criminal Record Checks

One of the primary ways prospective employers investigate applicants is through criminal record checks. Many employers in Massachusetts obtain copies of applicants’ criminal records through a state system called CORI. Some employers may also have access to more in-depth criminal record information through the federal government, which allows for nationwide searches into an applicant’s criminal history.

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In 2012, the Massachusetts legislature enacted a law that prohibits employers from asking about criminal record information on their initial written applications. However, employers may ask applicants to disclose information about certain types of convictions during an interview. If an employer wishes to ask an applicant about his or her criminal history in an interview, certain rules apply.

  • Felonies:
    • An employer may ask if an applicant has ever been convicted of a felony.
  • Misdemeanors:
    • An employer may only ask an applicant to disclose information about misdemeanors that occurred within the last 5 years. An Employer may not ask an applicant to disclose information about misdemeanors where the date of conviction or completion of incarceration was five or more years prior to the date of application.
  • An employer may not ask an applicant to disclose first-time convictions for: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbing of the peace.
  • Employers may not ask about arrests that did not lead to conviction.
  • Most employers cannot ask about sealed criminal records (although some industries, such as daycare centers, do have access to all records, sealed or otherwise.)

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What is CORI?

  • CORI stands for Criminal Offender Record Information.
  • CORI provides information about an applicant’s criminal history within the state of Massachusetts. It may also have additional information if outside sources provided the state with their records, but it is not a national criminal record system and typically does not provide information about crimes that occurred in other states.
  • The amount of information that an employer can access through CORI will depend on the type of industry the employer is in and the nature of the specific position that the applicant is applying for. Generally, employers can access more information when hiring for positions that require direct contact with children or the elderly, or that are involved with security.
  • Employers can access CORI once they are at the interview stage of the hiring process.
  • Employers must obtain the CORI report on their own.  They cannot require an applicant to provide his or her own copy of the criminal record in order to be considered for employment.
  • If an employer chooses to refer to information contained in a CORI report during an interview, the employer must provide a copy of the report.

What Happens if an Employer Decides Not to Hire an Applicant After Obtaining a CORI Report?

If an employer chooses not to hire an applicant because of information contained in a CORI report, the employer must provide the applicant with a copy of the report. Employers who rely on CORI reports when making an employment decision are not liable if they choose not to hire an applicant based on inaccurate information contained in a CORI report. If the employer makes the decision not to hire an applicant within 90 days of obtaining the report, and if there were no other discriminatory reasons for denying the applicant employment, then the employer is not liable for choosing not to hire the applicant based upon the belief that the information in the CORI report was correct.

The law surrounding background checks can be complicated – please contact an attorney if you have specific questions.

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