In Part 1 and Part 2 I discussed four steps that I recommend employers follow in using criminal records. Here in Part 3 and the last part of this series, I address the process of the handling of the documents.
Step 5: Handling Documents with CORI
Criminal records information obtained from any source is confidential, and employers must take precautions to insure that such information is protected from disclosure. Because of the highly confidential nature of criminal records, the number of individuals who are authorized to request, access, receive and review such information must be limited, and there are strict procedures for handling, storing and destroying criminal records information. The new regulations provide for controls by:
- Requiring the designation of a CORI Representative for an employer;
- Requiring a Secondary Dissemination Log to track all distribution of CORI;
- Limiting employer registration for CORI to one year increments; and
- Limiting the validity of employee or applicant Acknowledgement Forms to 12 months from the execution date or the end of employment, whichever is sooner.
… Keep reading
In my prior blog post, I provided the first two steps for an employer to obtain and use CORI in Massachusetts based on the new CORI regulations issued on May 25, 2012. This post addresses the next two steps in this process.
These blog posts also address when an employer conducts its own CORI checks. However, instead of conducting the background checks themselves, employers may request an outside consumer reporting agency to perform the background checks. If you use or are an outside consumer reporting agency, please note that some of the requirements of the new regulations may be different than described in my blog posts.
Step 3: Notifying Employee/Applicant of CORI
Once CORI is obtained by an employer, the employer must provide to the employee or applicant a copy of the obtained information and the source of the CORI before making any adverse employment decision based on the CORI, or even asking the employee/applicant questions regarding his/her criminal record.
If the employer intends to make an adverse employment decision based on the CORI, the employer is first required to:
- notify the individual in writing of the potential adverse employment action;
- provide a copy of the CORI, identifying
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Massachusetts enacted broad reforms to its Criminal Offender Record Information (“CORI”) laws in August 2010. These reforms emphasize existing non-discrimination requirements and provide new requirements for accessing records through the on-line system (“iCORI”), as well as using and maintaining criminal records.
The first part of the CORI reform laws became effective in November 2010, requiring employers to refrain from asking employees and job applicants to provide their criminal record history. The second part became effective May 4, 2012, requiring employers to follow certain procedures for obtaining and handling criminal records information when screening existing employees and applicants, and providing employees/applicants with certain due process rights before an employer can make an adverse employment decision based on such records.
The CORI system is complicated, and employers can easily and unknowingly run afoul of its mandates and prohibitions. To help you avoid exposure to these risks, I have broken down the CORI process into five steps. The first two steps are detailed in this post and the remaining steps will be explored in separate posts in the coming weeks.
Step 1: Registering and Preparing for CORI Access
Employers must register with the Massachusetts Department of Criminal Justice Information Services (“DCJIS”) to … Keep reading
As summer internship season approaches, employers should carefully institute internship programs which comply with the requirements of the Fair Labor Standards Act (FLSA).
In the case of “for-profit” companies, unpaid internships must meet the strict criteria of the FLSA. Specifically, as stated in U.S. Department of Labor’s (DOL) FLSA Fact Sheet #71 unpaid interns must:
- Receive training similar to that provided in an educational environment
- Be for the benefit of the intern, and not the employer
- Not displace regular paid employees
- Be closely supervised by existing staff
- Not be used for the immediate advantage of the employer (and in some cases, may impede the employer’s operations)
- Not necessarily be entitled to a job after the end of the internship
- Understand that the intern is not entitled to wages for time spent in the internship
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With the new year, Massachusetts employers must add “gender identity” to the list of classes entitled to protection from employment discrimination and retaliation. What was touted as the “transgender rights” law in Massachusetts is, in fact, a “gender identity” law.
The Massachusetts transgender rights law defines “gender identity” as:
[A] person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.
This law allows employees to establish a workplace gender identity by providing their employer with evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity, or “any other evidence that the gender-related identity is sincerely held, as part of a person’s core identity.”
Notwithstanding this new law, the Massachusetts Commission Against Discrimination has already found that transgender employees are protected under the Commonwealth’s existing sex and disability discrimination laws. Thus, we have long counseled Massachusetts employers to treat transgendered employees as a protected class, and we do not anticipate that this legislation will change that fundamental advice. … Keep reading
Most employment claims can be avoided by simply being aware of what the law requires. Here are three recurring issues which plaintiffs’ class action attorneys and government agencies are targeting across the country and which can be easily avoided by taking action now.
1. Misclassification of Workers as Independent Contractors
The Internal Revenue Service (IRS) and US Department of Labor (US DOL) have been increasingly cracking down on independent contractor misclassification. Last year, Massachusetts, along with several other states, signed a Memorandum of Understanding (MOU) with the IRS and DOL, formally agreeing to cooperate in investigating independent contractor misclassifications. If a violation occurs, the government agency investigating the matter is obligated to report it to the other state and federal agencies which may be affected by the misclassification, potentially opening up the company to an audit by the IRS or the US DOL.
Massachusetts has one of the toughest tests to be met in order to classify someone as an independent contractor, and the penalties for misclassifying vary with the legal requirement which was not met as a result of the misclassification. For example, if a worker was not paid accrued wages or vacation time upon termination, the … Keep reading