Employers located in the Commonwealth of Massachusetts and employers seeking criminal history information about applicants or employees who reside in the Commonwealth of Massachusetts are subject to additional state Criminal Offender Record Information (CORI) background check provisions effective Friday, May 4, 2012. It is EBI’s understanding that this requirement applies to employers whether they obtain criminal offender record information directly from DCJIS or through another source - including county court searches.
Commonly known as “CORI Reform,” Chapter 256 of the Acts of 2010 became law on November 4, 2010, making the Commonwealth of Massachusetts the second “ban the box” law state. Importantly, the CORI Reform provisions that become effective May 4, 2012 mandate stringent compliance requirements for employers who rely on criminal record information as a component of their employment decisions.
The Massachusetts Department of Criminal Justice Information Services (DCJIS) is the agency responsible for administering the CORI Reform law and has issued 84 pages of Proposed Regulations that defining these new CORI Reform compliance requirements. The key elements of the proposed regulations include:
- DCJIS will launch a new secure, web-based “iCORI” platform for accessing criminal history information on May 4, 2012. According to the DCJIS website, iCORI will become available on May 7, 2012. Currently certified agencies may continue to submit CORI requests through the Web-CORI system based on the certification previously issued to them. Please note that currently certified agencies will need to register for an iCORI account in order to utilize iCORI.
- New CORI registration requirements and training requirements require any employer who seeks access to iCORI to re-register for an iCORI account annually, and the employees with access to CORI information are required to complete mandatory iCORI training. Complete details pertaining to the iCORI registration are available at the DCJIS website.
- New CORI access levels and the criminal information correlating to each of the access levels has been re-defined. All employers may obtain “Standard Access” to CORI for the purpose of evaluating current and prospective employees, including full and part-time employees, contract employees, interns and volunteers. “Required Access” is restricted to employers required to comply with a particular statute, regulation, or accreditation requirement. Similarly to existing “certified” access, EBI will be “Open Access” is the third access level, and may be requested by any member of the public. Effective May 4, 2012, employers may continue to designate EBI to perform their CORI searches. Please contact EBI for additional details pertaining to this process.
- Employers who conduct five or more criminal background investigations per year must have a CORI Policy. The CORI law specifies a policy must include that the employer will: (a) notify the applicant if a potentially adverse decision may be made based on the criminal record information; (b) provide the applicant a copy of the criminal record information obtained and a copy of the employer’s criminal record policy; and (c) provide information concerning the process for the applicant to correct his or her criminal record. DCJIS is required to maintain a model CORI policy at the DCJIS website.
- The proposed regulations specify CORI Acknowledgement Form requirements before a CRA can request CORI on an employer’s behalf, the employer must: (a) notify the applicant in writing in a document consisting “solely” of such notice of its intent to obtain CORI, (b) provide the purpose for which the information is being requested, and (c) obtain the applicant’s written authorization to obtain this information. Employers should note the proposed regulations prohibit an employer from substituting a CORI Acknowledgement Form for the authorization required by the FCRA.
- The proposed regulations require the employer’s representative to sign and date the CORI Acknowledgment Form certifying that the subject was properly identified. The acknowledgment form is valid for one year from the signature date or until the subject’s employment ends, whichever occurs first. The proposed regulations limit the acceptable types of government-issued identification to include: (a) State-issued driver’s license, (b) State-issued identification card with a photograph, (c) Passport, or; (d)Military identification.
- CORI Reform requires that the employer provide the applicant with a copy of the criminal history record prior to questioning an applicant about their criminal history. Additionally, if an employer chooses to take adverse action based on a criminal record, the employer must notify the applicant about the potential adverse decision and provide the applicant with: (a) copy of the applicant’s criminal record; (b) copy of the employer’s criminal background check policy; and (c) a state-specified document concerning the process for correcting a criminal record. This document is available at the DCJIS website.
- CORI Reform limits the dissemination of criminal information to individuals within the employer’s organization who have a need to review the information to evaluate the applicant or employee, and to certain governmental agencies charged with overseeing, supervising, or regulating the employer. If an employer disseminates criminal history information outside of its organization (i.e. staffing companies and recruiters), then it must maintain a secondary dissemination log for one year following the dissemination. The proposed regulations state the log should contain: (a) the subject’s name, (b) subject’s date of birth; (c) date of each dissemination; (d) name of the person to whom the information was disseminated; and, (c) the purpose of the dissemination.
- The CORI law states that certain information maintained by an employer with respect to CORI shall be subject to audit by DCJIS. Failure to cooperate or respond may result in immediate revocation of CORI access. During an audit, an employer is obligated to provide DCJIS with access to inspect certain CORI-related documents including: (a) CORI acknowledgment forms; (b) secondary dissemination logs; (c) CORI policy; and (d) documentation of adverse employment decisions based on CORI. Certain violations of the CORI law can carry criminal sanctions for an individual or an entity, and a conviction for these crimes is punishable by imprisonment for not more than one year and/or a fine of not more than $5,000 for each offense.
- CORI Reform contains some protections for employers related to their use of and reliance on CORI records when the employer made an employment decision within 90 days of obtaining the criminal record information and followed the procedures for verifying the subject’s identity as required by the statute.
Employers who may be subject to these new guidelines should consult with your legal counsel before implementing or revising their existing policies. We have prepared a more detailed summary of the proposed regulations, and this document is also available via EBI’s Customer Care Department at 800-324-7700 or email@example.com. As an additional resource, DCJIS has also published informative “Implementing CORI Reform” document to assist employers with complying with the new requirements.
EBI is committed to providing employers with valuable education and resources on changing legislation and cutting-edge and compliant solutions to meet federal, state, local and international mandatory requirements. EBI will continue to update you on any further action or information available regarding this topic.
All information contained herein is provided by Employment Background Investigations, Inc. (EBI) and solely for the convenience of its clients and readers. EBI is not providing legal advice or counsel and nothing provided within this post should be deemed as legal guidance or advice. Readers should consult with their own legal counsel to determine their legal responsibilities or if they have questions on any information provided by EBI.