The following Employer Alert for Masschusetts Business Owners is provided by Masterman, Culbert & Tully LLP, One Lewis Wharf, Boston 02110, (617) 722-8100, Fax: (617) 722-8101 www.mctlaw.com
Attention Franchise Owners in Massachusetts:
Recently, Massachusetts Governor Patrick signed into law a bill which amends the employee personnel record statute. Employers are now required to notify an employee within 10 days of placing any information in the employee’s “personnel record” that has or could negatively affect the employee’s employment. Information that has been used or may be used to negatively impact an employee’s qualification for employment, promotion, transfer, compensation or the possibility that the employee will be subject to discipline triggers this new obligation. Even though the language of the statute is vague, employers should begin making a good faith effort to comply immediately. The new law also includes a restriction whereby employees may only request to inspect their personnel files twice during a calendar year. However, if employees receive notice that negative information has been added to their personnel file, a resulting review will not be counted against the two permitted inspections.
Governor Patrick also signed into law a bill that imposes new obligations and restrictions on Massachusetts employers’ ability to request, access, and use the criminal offender record information (“CORI”) of applicants and employees. Effective November 4, 2010, employers can no longer ask about criminal convictions on their initial written employment applications unless they are otherwise required to do so by state or federal law or regulations. That said, the new law does not purport to prohibit an employer from making appropriate inquiry about an applicant’s criminal record history based upon a CORI record later on in the process of considering applicants for hire, say after an interview, nor does it prohibit employers from making employment decisions because of information in a CORI report, subject to compliance with the changes noted below, which go into effect in 2012.
Additional changes, which become effective in 2012, include:
- Employers must provide the applicant with a copy of his or her CORI report before questioning him or her about its contents or making an adverse employment decision based on its contents;
- Employers performing five or more criminal background investigations annually are required to maintain a written policy that meets the criteria set forth in the statute;
- Employers requesting or using criminal history records must comply with recordkeeping and non-disclosure requirements; and The information that will be generally available to employers will be more restrictive than the information employers presently may obtain.
Regulations will be issued to further clarify the new requirements. In the meantime, employers are encouraged to review and amend, if necessary, employment applications and employee handbooks, to train all employees who are involved in the interviewing process or who have access to criminal history related information, and to review their filing and record retention policies.
If you have any questions regarding the changes to the personnel record statute, requesting and using criminal offender history information, or would like assistance in ensuring compliance, please do not hesitate to contact Mary E. O’Neal at email@example.com, Patricia A. Granger at firstname.lastname@example.org or Angela L. Rapko at email@example.com. You may also reach us by telephone at (617) 722-8100.
We also welcome your inquiries regarding other employment-related issues you may be facing in your business.