Yes; but employers may not ask certain questions.

The state anti-discrimination statute has provisions which forbid an employer "in any. . . matter relating to the employment of any person" to ask the applicant or employee about (i) an arrest or court proceeding where no conviction resulted, (ii) a first conviction of certain minor misdemeanors: drunkenness, simple assault, speeding or minor traffic violations, affray^[24] or disturbance of the peace; or (iii) conviction of a misdemeanor where the date of conviction, or the end of incarceration, whichever is later, occurred 5 or more years (without intervening convictions) before the request.^[25]

There are two problems with this law. The first is that what is forbidden is the employer's asking the applicant or employee about certain criminal involvement. But, according to a decision of the Supreme Judicial Court, the state's highest court, if the employer gets the seemingly forbidden information from some other source, and uses it to take adverse action against the person, the law is not violated.^[26]

The second problem is that employers don't generally even think about asking the forbidden questions. But what many of them do ask is whether or not the applicant has ever been convicted of a felony. This can be a perilous question to answer: unless the applicant knows the answer, it is wisest for him or her to say she does not know.^[27] If she says No, and the CORI report shows the answer should have been Yes, her wrong answer may eliminate the applicant from consideration for lying in the application process. But if she says Yes, when the truth may be No, she may eliminate herself from consideration before the employer even seeks a CORI report.

However, an employer or other gate-keeper may not ask an applicant to get a copy of her own CORI and bring it to the gate-keeper. A hard-to-find sentence in the CORI law itself also forbids an employer (or any other gatekeeper with respect to an applicant) to "request or require a person to provide a copy of his criminal offender record information."^[28] A violation of this provision may be the subject of a complaint to the CHSB under 803 CMR 6.06(6), and we know of at least one instance where the Board imposed sanctions on the employer. This statutory provision has proven, however, to be of diminishing significance since more and more employers are getting direct access to CORI; and all that the CORI law and CHSB require is that in making such a direct request, the requester get the CORI subject's signature on the requesting form, acknowledging that a request will be made and attesting to the accuracy of his or her identifying information.^[29]

Since there is a chance that the CORI report which the employer gets may be different, in a bad way, from the CORI report which the CORI subject has gotten on herself, job applicant who knows he or she has CORI, when asked to sign an acknowledgment form, should ask the employer to agree to share the CORI report which the employer gets with the CORI subject and discuss it. In fact, the 7/1/05 CHSB regulations now require such (what we call) minimal gatekeeper/applicant due process, so an employer now must give the job applicant a chance to rebut the accuracy and/or relevance of the CORI.^[30]

[24] Fighting by mutual consent of 2 or more persons in a public place to the terror of onlookers. Black's Law Dictionary.

[25] G.L. c. 15 1B, § 4, subsection 9, 1st paragraph. The CORI subject's remedy for a violation is an administrative or judicial one under c. 15 1B.

[26] Bynes v. School Committee of Boston, 411 Mass. 264 (1991).

[27] The distinction between a misdemeanor and a felony is briefly noted in the 2d and 3d bullets on page 8.

[28] G.L. c. 6, § 172, 5th paragraph, 3d sentence.

[29] G.L. c. 6, § 172, 5th paragraph, 4th sentence. The identifying information, as expanded by § 3.05(1) of the 7/1/05 regulations, consists of the person's full name (including maiden name or alias, if any), date of birth, place of birth, sex, former addresses, height, weight, eye color, social security number (if the person is willing to give it) and mother's maiden name. Interestingly, only the data elements here boldfaced are "search fields" within the CORI computer. But the Central Probation File for a person, which is the source of the CORI report, contains information on the person's father's name, mother's name and social security number.

[30] See the new regulation, 803 CMR § 6.11, which is item [D] in the Appendix.