YOU’RE DAMNED IF YOU DON’T KNOW WHAT CRIMINAL INFORMATION YOU CAN REQUEST FROM POTENTIAL EMPLOYEES

Posted: August 9, 2011 in Discrimination, Hiring and Firing

Change in the law alert! Under a new Massachusetts statutory scheme, you can obtain some information, but if you do it the wrong way or ask for the wrong information, you can buy your company a lawsuit and potentially a judgment of significant damages.

Here’s the skinny. You can’t ask candidates to fill out an application asking for any information about convictions, arrests, imprisonment, etc. You’d better check that application you created 5 years ago, or even 5 months ago, as some parts of the law just went into effect in the last few months.

The new law isn’t all bad for employers. In fact, it is now easier to obtain CORI information. And employers can even be protected from certain liability if they rely on the information and it is either (i) not accurate (protection from candidate who were not hired), or (ii) third parties (protection from negligent hiring cases).

Once you do obtain the information, which you can get with a release from the candidate after checking their identification, you can only disseminate it on a need to know basis. And if you decide not to hire a candidate based on the CORI information, you must tell the candidate this and provide a copy of the CORI documents. You can only keep the documents yourself for seven years.

You can also ask about certain information at the interview, but you must be very precise and careful. You cannot ask about arrests, detentions or dispositions for which there was no conviction (e.g., continued without a finding). You cannot ask about convictions of certain misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray (whatever that is), or disturbance of the peace. You cannot ask about a conviction of a misdemeanor where the conviction or incarceration occurred more than five years prior, with some exceptions. Other than all that, have at it.

You also must be careful to not exclude a protected class of people by not hiring anyone who has a criminal record. The EEOC is investigating whether to promulgate rules regarding criminal background checks, and there have been some cases where the EEOC has sued employers based on such background checks, because they can be discriminatory in their effect.

As always, the above is not legal advice. There are details and exceptions that are not covered here. If you have any questions about this issue, call me at 617.338.7000.

By Adam P. Whitney

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Comments
  1. Kevin says:

    Good to know. What’s the statute #? Thanks!

    • apwesq says:

      There is more than just one statute. See M.G.L. c. 151B, §4(9 1/2); M.G.L. c. 6, § 167, 168, 178; M.G.L. c. 276, § 100A; M.G.L. c. 6, § 171A, 172. There may be others.

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