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prospective employers. For an employer seeking a reference check, obtaining such a release

from an applicant is likely to increase the chance it obtains a substantive response from the

former employer. In general, the employer should document the response so a record exists

regarding the reference, although circumstances could arise that may result in such a record

being problematic.


Background Checks

The extent of an employer’s duty to make an independent inquiry into an applicant’s

background depends largely on the type of work to be done by the applicant. Because an

employer is more prone to liability where the employee’s position requires, for example,

working with children, entering people’s homes or protecting the safety of property of third

parties, a more intensive investigation is appropriate. Prospective employers should:

  • have applicants sign a consent to background checks;

  • make hiring contingent on satisfactory completion of a background check; and

  • consider drug testing of applicants.

Pursuant to the Criminal Offender Record Information Act (CORI), it is unlawful to

require a person to provide a copy of his criminal record (Mass. Gen. L. c. 6, § 172). CORI

provides only limited access to criminal records. However, employers, agencies and

individuals may apply to the Criminal History Systems Board for access to more extensive

information, if they are required by statute to have access to such information, or if obtaining

the information is in the public interest, such as information on employees who interact with

children or other particularly vulnerable populations. Employers need to develop and apply a

consistent policy regarding background checks of the criminal history of applicants for



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