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Beginning May 4, 2012, new restrictions regarding the use of criminal background checks will take effect in the state of Massachusetts.  While these are limited to Massachusetts, it is important to be aware of changes that might come about in other states, and even more important to make sure you know the rules and regulations surrounding background checks at your local and state level.  Lack of familiarity with these laws can cause problems for companies, and open up the door for civil action by applicants and/or employees.

One of the key components that employers must address by May 4 is as follows:

“A person who annually conducts 5 or more criminal background  investigations, whether criminal offender record information is obtained from the department or any other source, shall maintain a written criminal offender record information policy providing that, in addition to any   obligations required by the commissioner by regulation, it will: (i) notify the applicant of the potential adverse decision based on the criminal offender record information; (ii) provide a copy of the criminal offender record information and the policy to the applicant; and (iii) provide information concerning the process for correcting a criminal record. “

It is important for employers to ensure they have a policy in place for pre-adverse action, which includes providing the applicant the opportunity to make any corrections to their criminal record that might be possible.  This is a practice that can be utilized outside of Massachusetts, whether mandated or not.  It provides an applicant or employee a clear understanding of what is potentially a negative decision due to a criminal background check and how they can go about taking steps to correct a criminal record when possible.

The other part of this new regulation for Massachusetts includes the following:

“In connection with any decision regarding employment, volunteer opportunities, housing or professional licensing, a person in possession of an applicant’s criminal offender record information shall provide the applicant with the criminal history record in the person’s possession, whether obtained from the department or any other source prior to questioning the applicant about his criminal history. If the person makes a decision adverse to the applicant on the basis of his criminal history, the person shall also provide the applicant with the criminal history record in the person’s possession, whether obtained from the department or any other source; provided, however, that if the person has provided the applicant with a copy of his criminal offender record information prior to questioning the person is not required to provide the information a second time in connection with an adverse decision based on this information.”

For the state of Massachusetts, it is now mandated that an applicant be provided a copy of any background check documents that provide evidence of a criminal history before questioning the applicant or employee.  This allows an applicant to know what is on their record, and provides them an opportunity to dispute any information they deem as incorrect while still giving them a fair chance at a position they are applying for.  Obviously, in cases where a background check is run prior to an interview, the first opportunity to ask about this information is during the interview session. 

As with many of the other laws that have been developed and are in development governing the use of background checks, these are in place to protect the applicant in the event of a negative criminal history.  It is important for every company to know national, state and local laws when it comes to utilizing criminal background checks, as there are other states with laws similar to those being enacted in Massachusetts.  PeopleG2 can help mitigate some of these questions and or issues that arise.  We are here to help our clients navigate the employment screening process and bring clarity to questions surrounding compliance with FCRA, state and local laws.