5 Steps for Employer Use of Criminal Records: Part 2

In my prior blog post, I provided the first two steps for an employer to obtain and use CORI in Massachusetts based on the new CORI regulations issued on May 25, 2012.  This post addresses the next two steps in this process.

These blog posts also address when an employer conducts its own CORI checks.  However, instead of conducting the background checks themselves, employers may request an outside consumer reporting agency to perform the background checks.  If you use or are an outside consumer reporting agency, please note that some of the requirements of the new regulations may be different than described in my blog posts.

Step 3:  Notifying Employee/Applicant of CORI

Once CORI is obtained by an employer, the employer must provide to the employee or applicant a copy of the obtained information and the source of the CORI before making any adverse employment decision based on the CORI, or even asking the employee/applicant questions regarding his/her criminal record.

If the employer intends to make an adverse employment decision based on the CORI, the employer is first required to:

  • notify the individual in writing of the potential adverse employment action;
  • provide a copy of the CORI, identifying the information in the CORI that is the basis for such action;
  • provide a copy of the employer’s CORI policy, if the employer is required to have one (see my prior blog post, Part 1)
  • give the individual the opportunity to dispute the accuracy of the information contained in the CORI;
  • give the individual a copy of Massachusetts Department of Criminal Justice Information Services (“DCJIS”) information about the process to correct CORI; and
  • document all steps taken in the process.
Step 4:  Using CORI Properly

Most general employers have “Standard Access” to CORI, which includes:

  • all pending criminal charges, including cases continued without a finding or guilt until they are dismissed;
  • all misdemeanor convictions for five years following the date of disposition or date of release from incarceration, whichever is later;
  • all felony convictions for ten years following the date of disposition or date of release from incarceration, whichever is later; and
  • all convictions for murder, voluntary manslaughter, involuntary manslaughter and sex offenses (as defined in M.G.L. c.6, §178) punishable by a term of incarceration in state prison, unless sealed, including information relating to those offenses for which the subject was adjudicated as an adult while younger than 17 years old.

Although Standard Access allows access to the above information, an employer cannot use all of this information in making employment decisions.  For example, an employer may not use information that may fall under the first bullet above, if it involves:

  • an arrest or prosecution that does not lead to a conviction;
  • a 1st conviction for drunkenness, simple assault, speeding, minor traffic violation, affray or disturbance of the peace;
  • a misdemeanor where there has been no conviction; or
  • a juvenile record.

Consequently, employers must be very careful about what criminal records information they use.

Check back next week for the last part of “5 Steps for Employer Use of Criminal Records,” in which I will discuss the proper procedures for handling, storing and destroying criminal records information and the penalties for not complying with the new CORI regulations.