On August 6, 2010, Governor Patrick signed into law legislation overhauling the Massachusetts Commonwealth’s Criminal Offender Record Information law (CORI). The new law contains several provisions that will affect employers’ use of criminal histories of prospective and current employees.

The new law prohibits employers from asking questions on an “initial written application form” about an applicant’s “criminal offender record information,” which includes information about criminal charges, arrests, and incarceration. This provision amends a portion of the Massachusetts Fair Employment Practices Law, M.G.L. Chapter 151B, §4 (9), which bars employers from asking questions of job applicants about arrests that do not result in convictions and convictions for certain misdemeanors, but allows questions about felony convictions and about misdemeanor convictions not protected from disclosure. By using the term “initial written application,” the new law may allow employers to continue to question applicants about felony and currently unprotected misdemeanor convictions in subsequent parts of the application process such as in-person interviews, but the intent of the amendment is not clear. The new law may also be read to require employers to obtain criminal offender record information only from the newly created Department of Criminal Justice Information Services, which is a department in the executive office that largely replaces the Criminal History Systems Board (CHSB). The law does not address criminal history inquiries conducted by third parties on behalf of a current or prospective employer. Until these ambiguities in the CORI reform law are resolved, employers are advised to exercise caution in asking job applicants about any felony or misdemeanor convictions during the application process, to seek such information from the new Department, and to avoid asking for such information in any event on an “initial written application form.”

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