Massachusetts Employment Law Update

1. Massachusetts Employment Law Update Alison Langlais Proskauer 617-526-9765 alanglais@proskauer.com June 14, 2012

2. Massachusetts Personnel File Changes

3. Notice of Negative Information • New requirement: employees must be given notice within 10 days of any information that may be used “negatively” • Must provide an opportunity to review and copy any such information • Potentially expansive statute: could reach notes and emails Employees cannot sue for violations; Attorney General may impose fines • Still, there is a possibility that failure to comply could result in exclusion of favorable documents if you are sued for something else (for instance, discrimination)

4. Notice of Negative Information Continued • How to respond: • Performance evaluations, discipline, other formal documents should include written notice that the documents will be added to the personnel file • Take care in creating written commentary on employee performance • Don’t use informal notes or emails in making personnel decisions – convert to formal documents • For now, don’t worry too much about borderline documents; we are awaiting clarification from the AG or the courts

5. CORI Reform

6. “Ban the Box” • Law was signed by Governor Patrick on August 6, 2010. The first provision that went into effect was the “ban the box” provision on November 4, 2010. • Employers are prohibited from asking about criminal history on an initial written job application. • This amends the Fair Employment Practices Law, which already barred employers from asking about arrests that did not result in convictions and convictions for certain misdemeanors. • Employers may ask about criminal history later in the application and interviewing process.

7. New Law Governing Background Checks • New statute effective May 4, 2012, new regulations promulgated this spring. • Provides broader access to official CORI database by employers seeking information on job applicants. • Employers used to rely on for-profit internet background check companies. • Employers can now obtain information from the Department of Criminal Justice Information Services (“DCJIS”). • DCJIS has launched an online criminal history request service called iCORI, which will allow individuals and organizations to request and obtain CORI over the internet. • Employers must register to use iCORI.

8. Logistical Information • Should be less expensive and more efficient than hiring an investigator. • Employer must designate an individual to complete iCORI training and agree to all iCORI terms and conditions to register. • iCORI registration is valid for one year.

9. Standard Access • All employers may obtain “standard access” to CORI for the purpose of evaluating current and prospective employees. This provides information about: • Ten years of felony convictions • Five years of misdemeanor convictions • Pending criminal charges • Convictions for murder, manslaughter, and sex offenses punishable by incarceration, unless sealed • If a criminal conviction qualifies to be on a CORI report, an individual’s prior misdemeanor and felony record will be available

10. Required Access • Required Access to CORI is available only to requestors that are authorized or required by statute, regulation or accreditation requirement to obtain CORI to screen employees, interns, volunteers or professional licensing applicants • Provides for 4 sublevels of access depending on language of statutory, regulatory or accreditation requirement – think hospitals, schools, daycare, camps, nursing homes • 4 sublevels are described in the regulations

11. Open Access • Open Access to CORI is available to all members of the general public, and includes: • One year of misdemeanor convictions • Two years of felony convictions, and ten years of felony convictions for felonies punishable by 5+ years in state prison • Convictions for murder, manslaughter, and sex offenses punishable by incarceration, unless sealed

12. Changes in Available Information • Continued Without Finding are treated as non-convictions once probation is completed and the case is dismissed. • Non-convictions (dismissed, not guilty, nolle prose) are not available on CORIs unless an employer works with vulnerable populations. • The court will not notify private background check companies if there is a sealed record on file.

13. Employer Responsibilities: Documentation • CORI Acknowledgement Form • Consent form for employee • Employer must sign and date the acknowledgement form certifying that the subject was properly identified • Valid for one year and must be kept for one year • Must be submitted to DCJIS • Written CORI policy - if you conduct five or more investigations per year • Log of any dissemination (which is governed by the regulations)

14. Other Employer Responsibilities • Must lock or password protect hard/electronic copies of CORI – also governed in detail by the regulations • Must provide applicant a copy of any CORI: • Prior to questioning about it, regardless of source • After any adverse decision based on criminal history (but not a second copy) • May not share CORI with a third party without consent, except to certain government entities, and internally if need to know • CORI may only be kept for up to 7 years from the last date of employment or from the date the employer makes an employment decision

15. Other Considerations • An employer may not require an applicant to produce a copy of his or her own CORI • DCJIS will maintain a log of all requests for criminal records, which includes the name of the requesting entity and the date and purpose of inquiry • Enforcing body: the Criminal Record Review Board • Civil fines up to $5000 for knowing violations; referral for prosecution; private right of action • Regulations allow for audits of employer practices to confirm regulatory compliance • Regs do not prohibit employer from making an adverse employment decision based on an applicant’s objection to a CORI request.

16. CORI Policy • Policy must comply with standards set forth in M.G.L. c. 6, Section 171A • It should include the following information: • That the employer must obtain a consent form from a current or prospective employee before it can request criminal record information about that individual; • That the employer will inform any individual who is the subject of a background investigation that the employer may utilize the information obtained from a CORI check to make an adverse employment decision; and • That the employer will provide the individual with a copy of the criminal record information prior to questioning the individual about it and/or making an adverse employment decision based on it.

17. CORI Policy • The policy should also explain the process for correcting a criminal record, which can be found at: http://www.mass.gov/eopss/docs/chsb/cori-process-correcting-criminal-record.pdf • You can find a sample policy at: http://www.mass.gov/eopss/docs/chsb/dcjis-model-cori-policy-may-2012.pdf

18. Use of Consumer Reporting Agencies • Employers may use CRA’s to request CORI regarding an employment applicant, but must first: • Notify the applicant in writing and in a separate document that a consumer report may be used to make an employment decision; and • Obtain written authorization from applicant to conduct background screening before asking a CRA for the report. This is NOT the same thing as the CORI Acknowledgement Form. • A CRA will have the same level of access to CORI from DCJIS as the client on whose behalf the CRA is performing the CORI check. Consider also where the CRA gets its info for immunity purposes.

19. Requirements for Taking Adverse Action Based on Criminal History Information • Amended CORI statute does not prohibit employers from deciding not to hire a person or taking other adverse action based on criminal history. • In addition to providing the applicant with a copy of the CORI, an employer must also provide: • A copy of the employer’s criminal background check policy; • Information concerning the process for correcting a criminal record; • An opportunity to dispute the accuracy of the information contained in the criminal record, regardless of the source; and • Where the information is obtained from DCJIS, the employer must inform the individual of the information in the CORI that was the basis of the adverse decision. The employer must only disclose the source of the information if it did not come from DCJIS. • Employers should document compliance.

20. Employer Protections and Potential Liability • Employer must have made employment decision within 90 days of obtaining criminal record information and followed procedures for verifying subject’s identity (in regs) • Immunity from liability for negligent hire if you rely on DCJIS information that is erroneous. • No liability for discriminatory employment practices for failing to hire based on erroneous information received from DCJIS. • 151B does not expressly prohibit employers from refusing to hire individuals or taking adverse action based on information in a criminal record, though a cause of action for disparate impact may exist.

21. Resources for Employers • Check out the Department of Criminal Justice Information Services Website: http://www.mass.gov/eopss/agencies/dcjis/ • Handout on “Implementing CORI Reform” • Summary of Levels of CORI access with requestor types • Model CORI policy • Acknowledgement forms • Self audit information

22. Massachusetts Commission Against Discrimination

23. Discrimination Update -- Trends and Statistics • Overall increase in total number of employment discrimination cases by 20 percent • Race and gender claims continue to make up the majority of all employment discrimination claims, but the percentage has been shifting downward • Claims of national origin discrimination are on the rise – a 65 percent increase between 1997 and 2010. • National origin encompasses any claim based on language, accent, or ethnic background.

24. Investigative Conferences Are Back • For the past few years, MCAD conducted investigations entirely on its own • Recently has resurrected the investigative conference • Most of the burden is on the employee, but: • Send a knowledgeable witness to the conference • Be prepared to tell the employer’s side of the story, if asked • Be sure your statements are exactly consistent with the position statement

25. Developments in Social Media

26. Social Media and the NLRA (the “Act”) Section 7 of the Act protects “concerted activities for the purpose of collective bargaining or other mutual aid or protection. . . .” Note: No union or union-related activity required Section 8(a)(1) of the Act forbids an employer “to interfere with, restrain or coerce employees in the exercise of the rights guaranteed in Section 7”

27. Social Media and the Act – NLRB Interpretation and Enforcement • The Board uses the same test for legality of social media rules as developed over the years for legality of other work rules: • Does the rule directly interfere with or restrain protected activity? • If not: • Was the rule enforced to interfere with or restrain protected activity? • Was the rule issued in response to protected activity? • Can the rule be reasonably read to interfere with or restrain protected activity?

28. Social Media and the Act – NLRB Interpretation and Enforcement • Board will take an aggressive approach toward work rules and policies that are arguably “overly broad,” or that might be interpreted to restrict employees in the exercise of protected, concerted activity. • Board will consider “protected” any social media postings made on behalf of other employees or made with the object of inducing or preparing for group action. • Simple personal attacks posted off the clock, outside the workplace – even offensive or profane insults – may be protected if they even arguably arise out of concerted activity, terms or conditions of employment, or other alleged unfair labor practices. • Board will pursue enforcement against unionized and non-union employers alike.

29. Practical Tips for Updating Social Media Policies • Be Clear and Provide Examples in Plain English • Incorporate Codes of Conduct and Other Handbook Policies • Require Compliance with All Applicable Laws • Clearly Define Confidential and Proprietary Information • specify that all work product and content (along with customers, clients, followers, and walls) developed through social media, are and will remain company property • Consider Separate or Supplemental Policies for High Level Executives

30. Practical Tips for Updating Social Media Policies Avoid Overbroad Provisions narrowly tailor such rules to address what the employer's real concerns are, and recognize that some concerns cannot be addressed because the current NLRB administration (perhaps more than past ones) will see some areas where employer concerns must yield in favor of rights guaranteed under the NLRA E.g., use of trade and service marks by employees on picket signs/handbills/blog posts re: their employment conditions is allowed and restrictions are unlawful  30

31. Practical Tips for Updating Social Media Policies • Three techniques for tailoring that may be helpful are: • (1) relying on externally imposed restrictions (e.g., in the securities industry, there are restrictions on the types of communications brokers/traders may have with the public); • (2) relying on common and long practiced customs of the industry necessary to carry out the trade (e.g., journalistic integrity and neutrality expectations may allow certain restrictions on communications); and • (3) relying on examples of conduct following broad language, which will negate the likelihood that an employee may read a restriction too broadly to interfere with or chill protected communications

32. Practical Tips for Updating Social Media Policies (cont’d) • Consider Separate Sections to Address Business Use v. Personal Use • Consider Whether to Prohibit Accessing Social Media Sites for Personal Use Through Company Computers and Limiting Time and Location of Work-Related SN • Consider Whether Disclaimer (i.e., policy not intended to restrict legal rights) is Appropriate • Remind Employees About Lack of Privacy of Internet Postings and Employer Monitoring

33. Practical Tips for Updating Social Media Policies (cont’d) • Consider Restriction Use of Employee Email and Handles with Company Name • Consider Narrowly Tailored Provision Designed to Protect Company Trademarks • Require Disclosure of Affiliation with Company if Endorsing Company Products or Services and Compliance with FTC Rules • Consider Describing Consequences for Violation

34. Practical Tips for Updating Social Media Policies (cont’d) • Provide Examples of Statements Employees Can Include to Ensure that Personal Posts Cannot Be Construed as Being Sanctioned/Adopted by the Company • Include Rules About Post-Employment Obligations • For personnel who are engaging in SN on behalf of the company (e.g., maintaining the company Facebook page), make sure they obtain company permission first and are subject to a policy that asserts company ownership of all content, connections, screen names, handles, and credentials - SN credentials should be provided to the company upon initiation and any time they are changed thereafter

35. Practical Tips for Updating Social Media Policies (cont’d) • Address incoming and outgoing endorsements via SN (don't endorse a former company employee without HR approval, don't accept an incoming endorsement to your SN page without ensuring that it does not disclose confidential information) • Consider severability provision

36. Other Developments

37. Miscellaneous News Items • Discrimination against transgender employees is unlawful as of July 1, 2012 • Employers may not deduct the cost of damage to employer property from wages • At least not without providing due process to the employee • Out-of-state employees are protected by Massachusetts wage laws