On August 6, 2010, Massachusetts Governor Deval Patrick signed into law certain reforms to the Commonwealth’s Criminal Offender Record Information (“CORI”) law.  As we previously notified you, many of those changes went into effect last year.  To read our August 2010 Alert on CORI Reform clickhttp://marshallhalem.blogspot.com/2010/08/massachusetts-cori-reform-august-2010.html

On May 4, 2012, the last portion of that law went into effect.  In this Alert, we describe the new reforms and outline what employers should do to comply with this portion of the CORI reform legislation.

Review Of Early Changes

Most Massachusetts employers are now well aware that they can no longer ask applicants about their criminal history on an initial employment application.  This portion of the law went into effect in November 2010.

New Cori Data Base

The law also mandated the creation of a database to collect the criminal history of state residents.  This new internet-based system, known as iCORI, will be far more accessible than the old CORI request method.  Any employer who wants to request a CORI on an employee or applicant must register for an iCORI account.  To register, the employer must designate a responsible individual, pay a fee, and provide information about the purpose for requesting CORIs.

The data base will only contain felony convictions within the last ten years and misdemeanor convictions within the last five years — provided the individual had no subsequent convictions.  But certain convictions, including those for murder and sex offenses, will stay on the system permanently.

Required Authorizations

Before an employer may check an applicant’s criminal history, the applicant must sign an authorizationpermitting the review.  A copy of that authorization can be found on the Department of Criminal Justice Information Services (“DCJIS”) website at http://www.mass.gov/eopss/docs/chsb/cori-acknowlegement-form-employment-housing-20120509.pdf

 

In addition, the employer must receive and review government-issued identification verifying the applicant’s identity.

If an employer uses a third party company, known as a Consumer Reporting Agency (“CRA”) to run its criminal record background checks, the employer must still obtain a signed authorization.  A copy of the authorization for use with a CRA can be found at http://www.mass.gov/eopss/docs/chsb/cori-acknowlegement-form-organizations-using-a-cra-20120509.pdf

Questioning An Applicant/Employee About Cori

If an employer has obtained criminal history information about an applicant or employee, the employer must give that information to the individual before questioning him/her about their criminal history.

New Policy Requirement

An employer who requests more than five background checks a year must implement a written criminal offender record policy.  The policy must identify the steps the employer will take before choosing not to hire an applicant with a criminal record.

Designing A Cori Representative

Every employer must designate at least one CORI Representative.  The CORI representative is charged with various administrative responsibilities, including ensuring that the organization is in compliance with the CORI regulations and being responsible for overseeing all storage and acquisition of CORI reports.  The CORI representative must also undergo training on the new regulations and use of iCORI.

Rejecting An Applicant Based On A Cori Record

If an employer rejects an applicant for a position based upon search results from the new iCORI database, the employer must do the following:

  1. Give the applicant a copy of the CORI report.
  2. Give the applicant a copy of the employer’s CORI policy, if applicable.
  3. Identify the information on the CORI that formed the basis for the adverse action.
  4. Allow the applicant to dispute the accuracy of the information contained in the CORI.
  5. Inform the applicant about the process for correcting mistakes in criminal record information.Specifically, employers must give the applicant a copy of the DCJIS publication “Information Regarding the Process for Correcting CORI.”  A copy of which can be found herehttp://www.mass.gov/eopss/docs/chsb/cori-process-correcting-criminal-record.pdf
  6. Employers must document all steps taken to comply with the above requirements.

Massachusetts law does not prohibit employers from basing employment decisions on an applicant’s criminal record.  However, the Equal Employment Opportunity Commission has recently issued guidelines (which a court may or may not accept) warning that using a criminal conviction to make adverse employment/hiring decisions may be discriminatory due to the fact that a disproportionate percentage of convicted felons belong to a protected class.  We will discuss this development in another Legal Alert shortly.

Record Retention/Dissemination

Employers must keep the authorization signed by the applicant for at least one year.  In addition, employersmay not retain a copy of a former employee’s CORI record for more than seven years from the employee’s last day of employment.  Similarly, an employer may not retain the CORI record of an unsuccessful applicant for more than seven years.

CORIs that are retained in paper form must be kept in a secure, locked location.  CORIs that are stored electronically must be password protected and encrypted.  Access to an individual’s CORI is limited to individuals in the organization with a need to evaluate the information in making an employment decision.

All CORI responses are confidential.  Therefore, any dissemination of CORI reports outside a requestor’s organization must be logged in a secondary dissemination log.  This log must contain:

  1. applicant/employee’s name;
  2. applicant/employee’s date of birth;
  3. date and time of dissemination;
  4. it was disseminated to; and
  5. the specific reason for dissemination.

To Do

To comply with the law, Massachusetts employers who wish to obtain a CORI report for an applicant or employee must take the following steps.

  • Establish a procedure to ensure that you both obtain a signed authorization from applicants and verify their identity.
  • If you may conduct more than five CORI searches per year, develop the written criminal offender policy described above.We are happy to help you draft such a policy.
  • Institute a procedure to ensure that all applicants rejected due to their criminal history receive a copy of your policy as well as their CORI record.
  • Review your record retention and disposal practices to ensure that you retain the authorization for one year and that you dispose of the CORI information at least seven years after an employee’s separation or after receiving an unsuccessful application.