By Beth O’Neal, Esq.
I have been conducting background checks for applicants by using the CORI system available from the Massachusetts Department of Criminal Justice Information Services (DCJIS). I read that there are new regulations under this law – can you compare the old and new regulations to determine what are the differences and what more I need to do?
Yes. The Massachusetts CORI (which stands for Criminal Offender Record Information) regulations were amended effective April 27, 2017. A comparison of the old and newly amended regulations note the following changes.
The original 2012 regulations required employers to provide pre-adverse action notices before making an adverse decision based on CORI, to provide the applicant with his or her CORI, to identify the information in the applicant’s CORI that was the basis for the potential adverse action, and to provide the applicant with the opportunity to dispute the accuracy of the information contained in the CORI, by providing the applicant with a copy of the DCJIS form entitled Information Concerning the Process for Correcting a Criminal Record. Also under the 2012 regulations, if an employer obtained criminal history information (which is different than CORI) from a source other than the DCJIS, prior to questioning an applicant about the criminal history information or making an adverse decision based on the criminal history information, employers were required to provide the applicant with (i) his or her criminal history information, including the source (meaning where it came from); and (ii) the opportunity to dispute the accuracy of the criminal history information by providing the applicant with a copy of DCJIS form titled Information Concerning the Process for Correcting a Criminal Record. All of this is still required under the amended regulations.
However, there is an additional requirement. e employer must now identify the specific information in the criminal history information obtained from a source other than the DCJIS that is the basis for the potential adverse action. Under the prior regulations, the requirement to specifically identify the disqualifying information did not apply to criminal history information obtained from sources other than the DCJIS.
Sources of criminal history information from other than the DCJIS could include the employer itself who makes inquiries and checks records on its own; or a private detective; or the numerous online vendors who sell so-called background checks, among others.
The regulations also address an employer’s use of a CRA, meaning a credit reporting agency, utilized to obtain an applicant’s CORI from the DCJIS or criminal history from sources other than the DCJIS. By way of explanation, many employers use a third party, a CRA, to conduct their background checks for them. In such a case, before taking adverse action, the employer must comply with the federal law known as the Fair Credit Reporting Act (FCRA) in terms of providing the applicant with a pre-adverse action disclosure, along with a copy of the consumer report and a copy of the form entitled “A Summary of Your Rights Under the FCRA” (available on the Federal Trade Commission website) and (a) provide the applicant with the CORI or criminal history information obtained; (b) identify the source of the criminal history information; (c) identify the information in the employment applicant’s CORI (not the criminal history information) that is the basis for the potential adverse action; (d) provide the employment applicant with an opportunity to dispute the accuracy of the information in the CORI or criminal history information; and (e) only when CORI is considered as part of the potential adverse action, providing the applicant with a copy of the DCJIS form titled Information Concerning the Process for Correcting a Criminal Record.
The amended regulations continue to list “published records of a public court or administrative proceeding” as excluded from CORI. Therefore, if an employer orders a background check from a CRA sourcing from court records, this is not CORI. Consequently, the court sourced information is not covered as CORI by the old or new regulations.
Additional amendments include:
(i) a broader definition of employment applicant, now defined to include subcontractors, contractors and vendors (in addition to individuals applying for employment and volunteer opportunities);
(ii) the exclusion of information from the definition of CORI concerning persons who have not attained the age of 18 years (instead of 17) regarding criminal offenses, or acts of delinquency, except if the person under 18 was adjudicated as an adult;
(iii) the elimination of the requirement to provide 72 hours’ notice before re-running a CORI within one year so long as the subject employee remains employed and the requestor notifies the subject on its CORI Acknowledgement Form that a CORI may be requested at any time within the one-year period;
(iv) a specific definition of what constitutes CORI (not included in the previous regulations). CORI is now defined as Records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to M.G.L. c. 276, § 58A where the defendant was detained prior to trial or released with conditions under M.G.L. c. 276, § 58A(2), sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any consequent proceedings related thereto. Criminal offender record information shall not include evaluative information, statistical and analytical reports and ‑les in which individuals are not directly or indirectly identifiable, or intelligence information.
Criminal offender record information shall be limited to information concerning persons who have attained 18 years of age and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he or she attained 18 years of age; provided, however, that if a person younger than 18 years old is adjudicated as an adult, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. 803 CMR 2.02.
(v) the amended, as well as the previous, regulations continue to specifically exclude from the definition of CORI,
(j) published records of public court or administrative proceedings;
(k) published records of public judicial, administrative, or legislative proceedings; but they now also exclude
(l) federal criminal record information; and
(m) anything otherwise excluded by law.
If you conduct CORI background checks, it is important to visit the DCJIS website, which is well done and informative, to ensure you are doing everything correctly.
Beth O’Neal, Esq., is a partner in the Boston law firm of Conn, Kavanaugh, Rosenthal, Peisch & Ford LLP. Send questions to moneal@connkavanaugh.com.
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