On August 6, 2010, Governor Deval Patrick signed into law a bill which significantly revamped Massachusetts’ criminal record system. The new law, Chapter 256 of the Acts of 2010, entitled “An Act Reforming the Administrative Procedures Relative to Criminal Offender Record Information and Pre-and-Post Trial Supervised Release”, limits CORI information available to employers, including public schools. Pursuant to this new law, CORI information is now limited to felony convictions for 10 years following disposition, or, if the individual was incarcerated, 10 years from the date of release; misdemeanor convictions for five years following disposition, or, if, the individual was incarcerated, five years from the date of release; and pending criminal charges. Chapter 256 of the Acts of 2010.
The new law further prohibits most employers, including public schools, from making an inquiry on their “initial written application form” about an applicant’s criminal offender record information, including information concerning prior charges, arrests and convictions. G.L. c. 151B, §9 1/2. This prohibition, referred to as “ban-the-box”, took effect November 4, 2010, so public schools should take measures to modify their written employment applications to ensure compliance. Under this new law, employers such as public schools are further prohibited from the following:
Asking an applicant to obtain a copy of his or her CORI record for the employer. G.L. c. 6¸§ 72;
Asking an applicant or current employee, in writing or orally, about a prior arrest, detention or disposition that did not result in a conviction. G.L. c. 151B, §4(9);
Asking an applicant or current employee, in writing or orally, about a prior first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace. G.L. c. 151B, §4(9).
Asking an applicant or current employee, in writing or orally, about sealed records or juvenile offenses. G.L. c. 151B, §4(9).
However, notwithstanding these new limitations, an employer is still permitted to ask an applicant during the interview process what he or she was doing for a period of time not explained by his or her work history. Chapter 256 of the Acts of 2010.
There are two narrow exceptions to the prohibitions imposed by Chapter 256 of the Acts of 2010. Under the new law, it is illegal for employers to inquire about criminal records information on a written job application unless the applicant is applying for a position for which any federal or state law or regulation either (1) disqualifies, or (2) prohibits employers or affiliates from employing persons convicted of specified offenses. Chapter 256 of the Acts of 2010. The second exception would apply, for example, to banks, their parents and subsidiaries, which are required by federal law to make inquiries about whether a job applicant has been convicted of a crime that involves dishonesty, breach of trust or money laundering. 12 U.S.C. §1829. These exceptions do not appear to apply to public schools.
It should be noted that while Chapter 256 of the Acts of 2010 limits the scope of CORI information available to employers such as public schools, this law does not change schools’ existing obligations to comply with other mandates of state law. Specifically, the new law does not alter the existing obligation imposed by G.L. c. 71, § 38R which requires, among other things, that all schools (including private schools) conduct criminal background checks on current and prospective employees and volunteers, including those who regularly provide school related transportation to students, who may have direct and unmonitored contact with children.
(Pursuant to a Massachusetts Department of Elementary and Secondary Education CORI Law advisory revised May 7, 2007, “direct and unmonitored contact with children” means “contact with a child when no other CORI cleared employee of the school or district is present. A person having only the potential for incidental unsupervised contact with children in commonly used areas of the school grounds, such as hallways, shall not be considered to have the potential for direct and unmonitored contact with children. These excluded areas do not include bathrooms and other isolated areas (not commonly utilized and separated by sight or sound or other staff) that are accessible to students.)
CORI must be obtained from the Criminal History Systems Board (“CHSB”) at least every three years during an individual’s term of employment or service. In addition, G.L. c. 6, § 172I, requires schools to obtain CORI of employees of taxicab companies that have contracted with the schools to provide transportation to pupils under G.L. c. 71, § 7A. Contracting taxicab companies are required to submit the names of employees who may have direct and unmonitored contact with pupils to the appropriate school committee or school superintendent prior to those drivers transporting any pupil.
The new law also does not alter existing requirements under G.L. c. 71, § 38R which allows schools to conduct CORI checks on subcontractors or laborers commissioned to do work on school grounds that may have direct and unmonitored contact with children. This includes school bus or van drivers employed by a transportation company under contract with the district to provide transportation services to students.
Chapter 265 of the Acts of 2010 does not restrict the hiring authority for any employer from reserving the exclusive right to make employment decisions. An employer may still consider factors consistent with a school policy when reviewing an applicant’s CORI information as part of the hiring process.
New Procedures for Obtaining and Relying on Criminal Records
Massachusetts School Districts should also be aware of the new procedures imposed by Chapter 256 of the Acts of 2010 for obtaining and relying on criminal records. These new procedures shall take effect May 4, 2012. They are as follows:
- It shall be unlawful to ask a person to provide a copy of his or her criminal record information other than as authorized by this statute [Chapter 256 of the Acts of 2010].
- A newly created Department of Criminal Justice Information Services shall maintain an internet-based criminal offender record information database, which, for a fee, employers or their legally designated representatives will be able to access to evaluate current employees or applicants.
- To access the database, a requestor must certify under the penalties of perjury that (i) it has obtained a signed acknowledgement form from the subject authorizing the employer to obtain the subject’s criminal record information, (ii) the request is for a purpose authorized by statute, and (iii) that he has verified the identity of the subject by reviewing a form of government issued identification.
- Information on all felony and misdemeanor convictions will be available for this purpose for as long as the subject’s last available conviction record is available — 10 years after conviction or the end of incarceration for felonies, and 5 years for misdemeanors.
- Requestors shall maintain acknowledgment forms for a period of 1 year from the date the request is submitted.
- A requestor shall not disseminate criminal offender record information except upon request by a subject; provided, however, that a requestor may share criminal offender record information with individuals within the requesting entity that have a need to know the contents of the criminal offender record information to serve the purpose for which the information was obtained; and provided further, that upon request, a requestor shall share criminal offender record information with the government entities charged with overseeing, supervising, or regulating them. A requestor shall maintain a secondary dissemination log for a period of one year following the dissemination of a subject’s criminal offender record information. The log shall include the following information: (i) name of subject; (ii) date of birth of the subject; (iii) date of the dissemination; (iv) name of person to whom it was disseminated; and (v) the purpose for the dissemination. The secondary dissemination log shall be subject to audit by the Department of Criminal Justice Information Services.
- Unless otherwise provided by law or court order, employers shall not maintain a copy, electronic or otherwise, of requested CORI information for more than 7 years. Any person, including an employer, must give a subject a copy of any criminal record information about the subject in its possession — no matter how it was obtained — prior to questioning the subject about his or her criminal history in connection with a decision regarding employment.
- Any person who annually conducts 5 or more criminal background investigations, — whether criminal record information is obtained from the database or any other source, shall maintain a written criminal record information policy providing that it will (i) notify the applicant of the potential adverse decision based on the criminal record information, (ii) provide a copy of the criminal record information and the policy to the applicant, and (iii) provide information to the applicant concerning the process for correcting a criminal record.
- Employers shall not be liable for negligent hiring practices by reason of relying solely on criminal record information obtained under the statute. Employers shall also not be liable for discriminatory employment practices for the failure to hire a person on the basis of information obtained under the statute that contains erroneous information.
- Statutory violations are punishable by imprisonment for not more than 1 year or by a fine of not more than $5,000 for individuals and $50,000 in the case of an entity that is not a natural person.
Chapter 256 of the Acts of 2010
Lastly, school districts should be advised that implementing regulations are to be issued, and may add to the rules for employers. Further, the Massachusetts Department of Elementary and Secondary Education will be issuing an updated CORI advisory to schools in the next few months which may modify the guidance rendered in this memo.