Two bodies of law govern how a Massachusetts employer looks into a job applicant’s criminal history. The CORI law (G.L. c. 6, §§ 167–178) and the regulations of the Department of Criminal Justice Information Services (803 CMR 2.00) control what an employer can get from the state and how it must use it. The anti-discrimination law, G.L. c. 151B, controls what an employer may ask.
This guide follows a job application in order, from the application form to a complaint about a CORI violation.
First, the Basics: CORI, Requestors, and Subjects
A CORI check is a request to the state for criminal record information about you, and the law uses a few terms worth knowing.
CORI (criminal offender record information) is the state’s term for records compiled by Massachusetts criminal justice agencies about an identifiable adult’s criminal charges, court proceedings, sentencing, incarceration, and release (G.L. c. 6, § 167). The Department of Criminal Justice Information Services (DCJIS) keeps the CORI database (§ 172(a)). For what CORI does and does not include, see What Is in a Massachusetts Criminal Record?.
A requestor is a person or organization, other than a criminal justice agency, that asks DCJIS for CORI; the subject is the person whose record is requested (§ 167). In a job check, the employer is the requestor and you are the subject.
Step 1: What an Employer May Ask on the Application Form
An employer generally may not ask about criminal records on its first written application.
Under G.L. c. 151B, § 4(9½), an employer may not request criminal offender record information on its initial written application form, a rule commonly known as “Ban the Box.” It may ask about convictions on the form only if a federal or state law or regulation creates a mandatory or presumptive disqualification from the job based on certain convictions, or bars the employer or an affiliate from employing people with certain convictions. Even then, the limits in Step 2 apply.
For these rules, an employer does not include one with fewer than six employees, or a social club or fraternal association not organized for private profit (c. 151B, § 1(5)).
Step 2: Criminal History Questions an Employer May Not Ask
State law bars employers from asking about four kinds of criminal history.
Under c. 151B, § 4(9), in hiring or any other employment matter, an employer may not request, record, or use a form that asks for information about the following, or penalize you for not providing it:
- Cases that did not end in a conviction: an arrest, detention, or disposition in which no conviction resulted.
- Certain first misdemeanors: a first conviction for drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace.
- Older misdemeanors: a misdemeanor conviction where the conviction, or the end of any resulting incarceration, whichever is later, was 3 or more years before the application or request, unless you were convicted of any offense in the 3 years before it.
- Sealed or expunged records: a criminal record, or anything related to one, that has been sealed or expunged under chapter 276.
The same subsection provides that no one is guilty of perjury or of giving a false statement for not reciting information they have a right to withhold.
Separately, c. 276, § 100A requires a job application that asks about prior arrests or convictions to state that an applicant with a sealed record on file with the Commissioner of Probation may answer “no record.”
Step 3: Your Permission Before a CORI Check
An employer must have your signed acknowledgment, and must check your identity, before requesting your CORI from DCJIS.
To obtain Standard or Required Access CORI, a requestor must certify under the penalties of perjury that the request is for an authorized purpose, that the subject signed an acknowledgment form authorizing it, and that the requestor verified the subject’s identity with government-issued identification (§ 172(c)).
Under 803 CMR 2.11, the acknowledgment form lists all names you have used. For employers, it is valid for one year or until your employment ends, whichever comes first, and a new check may be run within that year if the form said so. The regulations do not prohibit an employer from making an adverse decision because you refused to consent to a lawful request (803 CMR 2.11(9)).
If the employer uses a consumer reporting agency (a company that compiles background reports for others), it must also give you a separate written notice and get your separate written authorization (803 CMR 2.22(1)).
No demanding your own copy. Except as § 172 allows, it is unlawful to request or require a person to provide a copy of their own CORI (§ 172(d); 803 CMR 2.10). A knowing violation is a crime punishable by up to one year in a jail or house of correction, a fine, or both (§ 178).
Step 4: What a Standard Access Check Shows
Unless a specific law gives an employer more, it receives Standard Access, which shows pending cases and convictions within set time windows.
Section 172(a)(3) allows a requestor to obtain CORI to evaluate current and prospective employees and volunteers. The regulations call this Standard Access (803 CMR 2.05(4)). It is limited to:
- Pending charges, including cases continued without a finding (CWOF) until they are dismissed.
- Misdemeanor convictions for 5 years after the disposition, including the end of any incarceration or custody.
- Felony convictions and findings of not guilty by reason of insanity for 10 years after the disposition, including the end of any incarceration or custody.
If any conviction is still within its window, all earlier convictions are available for as long as that last conviction is (§ 172(a)(3); 803 CMR 2.05(4)(b)). Violations of abuse prevention orders (c. 209A, § 7) and harassment prevention orders (c. 258E, § 9) are treated as felonies for this purpose. Convictions for murder, manslaughter, and sex offenses under c. 6, § 178C that are punishable by state prison remain available permanently unless sealed (§ 172(b)).
Sealed records are not part of Standard Access; among the Required Access tiers, only the broadest includes them (803 CMR 2.05(3)). No level includes anything expunged by court order (803 CMR 2.05(6)). For how all the access levels compare, see What Is in a Massachusetts Criminal Record?; for sealing and expungement, see Expunging a Criminal Record in Massachusetts; for CWOFs, see What Is a CWOF in Massachusetts Criminal Cases?.
Step 5: Employers With Broader (Required) Access
Some employers may see more than Standard Access because a specific law requires or authorizes it.
A requestor authorized or required by a statute, regulation, or accreditation requirement to obtain more than Standard Access may obtain it to the extent that requirement allows (§ 172(a)(2)). The regulations call this Required Access and set four tiers, each adding to the one before (803 CMR 2.05(3)):
- Required 1: pending charges (including CWOFs until dismissed), all adult misdemeanor and felony convictions, and offenses for which the person was adjudicated as an adult.
- Required 2: adds cases that did not result in a conviction.
- Required 3: adds all juvenile offenses, including pending charges.
- Required 4: adds sealed offenses.
The tier depends on the wording of the law that mandates the check (803 CMR 2.05(3)(a)). Schools, children’s programs, camps, child care, and elder care are among the settings covered by specific statutes; What Is in a Massachusetts Criminal Record? describes them.
Step 6: Before an Employer Questions You About Your Record
An employer that has your criminal history must give you a copy before asking you about it.
In any decision about employment, volunteering, housing, or professional licensing, a person who has an applicant’s CORI must give the applicant the criminal history record in its possession, from DCJIS or any other source, before questioning the applicant about it (§ 171A; § 172(c)). The employer must also disclose the source (803 CMR 2.16(1)).
Step 7: Before a Decision Against You
Before an employer acts against you based on criminal history, it must notify you, give you the record, and let you dispute it.
An adverse decision is a decision against an applicant or employee. Under 803 CMR 2.20, before taking adverse action based on CORI or other criminal history information, an employer must:
- notify you of the potential adverse action, in person, by telephone, fax, or electronic or paper correspondence;
- give you a copy of the CORI or criminal history information and identify its source;
- give you a copy of its CORI policy, if it has one;
- identify the information that forms any basis for the potential action;
- give you the opportunity to dispute the accuracy of the information;
- when CORI is part of the decision, give you DCJIS’s information on the process for correcting CORI; and
- document the steps it took.
An organization that runs 5 or more criminal background investigations a year must keep a written CORI policy (§ 171A; 803 CMR 2.18). If a consumer reporting agency ran the check, the employer must also give you the consumer report and a Federal Trade Commission summary of your rights (803 CMR 2.22(2)).
These are procedural rules. Section 171A states that it does not prohibit a decision based on criminal history, and does not create a claim under chapter 151B or a separate court action for such a decision, except as chapter 151B provides.
Step 8: How an Employer Must Handle Your CORI
An employer may share your CORI only in limited ways and may not keep it indefinitely.
A requestor may share CORI only at the subject’s request, with staff who need to know it for the purpose it was obtained, and, on request, with government entities that regulate the requestor, and it must log that sharing for one year. Unless a law or court order provides otherwise, it may not keep a copy of CORI from DCJIS for more than 7 years after your employment ends or after its final decision about you (§ 172(f)).
Step 9: Complaints, Corrections, and Court Actions
CORI violations can be taken to DCJIS, and can lead to fines, loss of access, a lawsuit, or prosecution.
A complaint may be filed with DCJIS for any violation of the CORI laws and regulations, including improper access to or sharing of CORI and failure to follow the regulations (803 CMR 2.27(1)).
The Criminal Record Review Board (CRRB), a board within DCJIS, may hear complaints that a requestor failed to give the subject a copy of the CORI before questioning or an adverse decision, or broke other CORI rules. A complaint must be made under the penalties of perjury, and any filing fee may be waived for indigency (§ 168). DCJIS investigates first, and a supported complaint may go to a hearing or conference (803 CMR 2.27). The board may impose civil fines for each knowing violation, restrict or revoke CORI access, and refer a complaint for criminal prosecution (§ 168(b); 803 CMR 2.28(3)).
Separately, a person aggrieved by a violation of §§ 168–175 may sue in Superior Court for damages or to stop the violation, with added damages, costs, and attorney’s fees for a willful violation (§ 177).
Errors in the record. A complaint about inaccurate CORI also goes to DCJIS, which cannot change Trial Court records and may refer it to the agency that can (803 CMR 2.26); court corrections must be sent to DCJIS (§ 175). A free self-audit, a log of non-criminal-justice requests for your CORI, is available once every 90 days (§ 172(g)).
Frequently Asked Questions
Can an employer ask me about a case that was dismissed?
Generally not. Section 4(9) of chapter 151B bars covered employers from asking about an arrest, detention, or disposition in which no conviction resulted. Such a case is also outside Standard Access, though Required 2 and higher include it (803 CMR 2.05).
Will an open CWOF show up on a Standard Access check?
Yes. For Standard Access, pending charges include cases continued without a finding until the case is dismissed (§ 172(a)(3)).
Questions About an Employer CORI Check? Talk to a Lawyer
What an employer can see often turns on how a criminal case ended. The Law Office of William J. Barabino in Medford has over 23 years of experience in Massachusetts criminal defense and represents clients throughout Greater Boston.
Call 781-393-5900 for a confidential consultation.
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Disclaimer
This article is for general educational purposes only and is not legal advice. CORI access and employment rules depend on the specific record, the employer, and the job, and statutes and regulations change. Reading this page does not create an attorney-client relationship. If you have questions about how a Massachusetts criminal record affects employment, consult a licensed Massachusetts criminal defense attorney about your situation.
