Employment-Related Criminal Offender Record Information "CORI" Changes Go into Effect on May 4, 2012

The remaining changes from the 2010 overhaul of the Criminal Offender Record Information (CORI) law will go into effect on May 4, 2012, and several provisions affect Massachusetts employers. We first addressed changes to the CORI law in an alert published in September 2010, when the “ban the box” provision prohibited most employers from requesting criminal history information on an initial employment application.

The CORI system allows certain employers to petition to access criminal record information for applicants, employees, and volunteers. Employers that work with the elderly, disabled, or children, for example, must register with the Department of Criminal Justice Information Services (DCJIS), which administers the CORI system, in order to access CORI.

Beginning on May 4, the CORI request system will be available online to all employers, not just employers working with particular populations. Other key changes include:

• Employer Certifications and Forms: Employers making CORI requests must certify that the CORI subject has signed an acknowledgement form authorizing the employer to obtain criminal record information. Employers must certify that they have verified the identity of the CORI subject with a form of government-issued identification. Employers must maintain acknowledgement forms for one year from the date of the request.
• Use of CORI in Employment Decisions: Employers may not reject applicants based on criminal history information without informing the applicant. An employer must provide the applicant a copy of any CORI the employer has accessed before questioning the applicant about his/her record. If the employer makes an adverse decision based on a criminal record, then the employer must give the applicant a copy of the record upon which the decision was based. Failure to provide the criminal history information to the applicant may subject the employer to investigation, a hearing, and/or sanctions by the board.
• Restrictions on Dissemination: Employers may only share CORI information with those people in the employer’s organization that have a need to know the contents of the CORI or with government entities. Employers must maintain a secondary dissemination log for one year following the dissemination of a CORI. The log must include the name of the CORI subject, his/her date of birth, the date of dissemination, the name of the person who received the CORI, and the purpose for disseminating the CORI.
• Limits on Retaining CORIs: Employers may not maintain a copy of a CORI for more than seven years from the last date of employment, or from the date of the employment decision. This restriction applies to CORIs obtained from the DCJIS, not private companies.
• Safe Harbor for Wrongful Termination: Employers who make decisions within 90 days of obtaining a CORI from the state will not be held liable for negligent or discriminatory hiring practices if they relied on the state-provided CORI. Employers who obtain criminal history information from private, for-profit companies do not receive the safe harbor.

Employers also should know that new provisions decrease the waiting period for sealing a criminal record. Records can be sealed 10 years after a felony and 5 years after a misdemeanor, while the waiting period has been 15 years for a felony and 10 years for a misdemeanor. Employers still may view pending criminal charges on the CORI until the charges are dismissed, and still have permanent access to view convictions for murder, manslaughter, and major sex offenses. Notably, employers will no longer have access to view non-convictions unless the employer works with a vulnerable population, such as children.