Sweeping Changes to Criminal Background Checks Require Employers to Institute New Hiring Procedures

In the Press · August 12, 2010

The Massachusetts Legislature recently enacted a comprehensive overhaul of the system of maintaining criminal offender records. The new law, which was signed by Gov. Deval Patrick on August 6, 2010, establishes the Department of Criminal Justice Information Services and directs this department to create a database, searchable on the Internet, that maintains criminal offender record information. While making it easier to access criminal offender information, the new law will also require employers to change their employment application forms, to institute new hiring and record keeping procedures, and to develop a new criminal background check policy.

The significant changes for employers include the following:

1.  Changes to employment application forms: With limited exceptions, as of November 4, 2010, employers will no longer be allowed to ask any questions about criminal history on initial written application forms. In the past, employers could ask questions about felony convictions and about some misdemeanors. Employers need to review their application forms and remove any criminal history related questions.

2.  Easier access to criminal offender record information: Employers who follow the proper procedures will be able to access criminal offender record information over the Internet. The database will contain felony convictions for ten years, misdemeanors for five years, and pending criminal charges. Convictions for murder, manslaughter (voluntary and involuntary) and certain sex offenses will be in the database permanently.

3.  Other changes to hiring procedures: An employer who has an applicant’s criminal offender record information must provide the applicant with a copy of that information before asking any questions on this topic. Similarly, an employer who rejects an applicant for employment based on a criminal record review must provide a copy of the criminal history to the applicant.

4.  New recordkeeping requirements: The new law requires the following:

    • Acknowledgement forms: To access the criminal offender record information database, employers must obtain acknowledgement forms from applicants authorizing the employer to view the information. Employer must keep the acknowledgement forms for one year from the date that the request for information was submitted. Employers must also verify the identity of the subject by reviewing a form of government-issued identification.
    • Criminal offender records: Employers need to review their document retention policies and ensure that criminal offender records are not maintained for more than seven years from an employee’s last date of employment or from the date that the person was rejected from employment.
    • Secondary dissemination log: Employers who share criminal offender records must maintain a log of all persons with whom the information was shared. The log, which must be maintained for one year following the date of dissemination, needs to include the subject’s name and date of birth, the date of dissemination, the name of the person who was provided the information, and the purpose (any such sharing must be on a need to know basis).

5.  New policy requirements: Employers who annually conduct five or more criminal background investigations need a written criminal offender record information policy, which requires employers: a) to notify an applicant of the potential adverse decision based on criminal offender record information, b) to provide the applicant with the criminal offender record information and the employer’s policy, and c) to provide information concerning the process for correcting a criminal record.

Employers who follow the appropriate procedures for accessing the criminal offender records database will be able to rely on the information obtained to defend against claims that the employer did not perform an adequate criminal background check. The law also shields employers from discrimination claims brought by applicants rejected because of erroneous information in the criminal offender database. To take advantage of these special protections, employers must make their employment decisions within 90 days of obtaining the criminal offender record information.

With the exception of the change to the application form, which goes into effect in a few months (November 4, 2010), the remaining changes will not go into effect for 18 months, or until February 6, 2012. Accordingly, while most employers will no longer be allowed to ask criminal history questions in their application forms as of November 4, 2010, there will be a lag before employers will have Internet access to this information. The law does not appear to prohibit employers from asking about criminal history at later points during the hiring process or from using third-party consumer reporting agencies to perform criminal background checks.

NOTE: Employers should ensure that their hiring personnel are adequately trained on this new law and permissible and impermissible inquiries. As of November 4, 2010, employers may not ask criminal history information on initial application forms. While employers may question employees about criminal history in interviews, or ask for such information in a written form that is not part of the “initial written application form,” any such questioning must comply with existing legal requirements. Under these requirements, which are longstanding, employers may NOT request information regarding (1) matters in which there were no convictions, (2) first convictions for certain misdemeanors (drunkenness, simple assault, speeding, minor traffic violations, affray or disturbance of the peace), or (3) convictions for misdemeanors where the date of conviction or completion of any period of incarceration occurred five or more years from the date of application unless the person has been convicted of any offense within five years of the date of application.

For more information, please contact Laurie F. Rubin, the author of this Alert, at 617 456 8020 or lrubin@princelobel.com.