CORI Review and Adverse Actions for Employers: What You Need to Know
Posted on: Tuesday, December 30th, 2014
Many Massachusetts employers, and specifically human resources officers, use employment applicants’ Criminal Offender Record Information (“CORI”) when evaluating possible employment. In fact, millions of CORI requests are handled each year; over 5,000 CORI reports are sent out each day by the Criminal History System’s Board (“CHSB”). See Ernest Winsor, The CORI Reader (3d Ed.-2d Rev. July 14, 2006), at 5. A CORI consists of information generated by the criminal justice system relating to one or more criminal charges (which are formal accusations) of crimes punishable by incarceration. Typically, these employers see records only of cases that ended in conviction or pending criminal charges. 803 C.M.R. § 2.05(4)(a). In reviewing CORIs, employers should utilize best practices to prevent legal ramifications for failing to follow proper steps should the employer choose not to hire someone based on their CORI.
Employers within the Commonwealth are granted CORI access upon an individual basis by showing a public interest in disclosure that outweighs the CORI subject’s privacy interest in non-disclosure. See G.L. c. 6, § 172(c). Specifically, employers must register with the web-based, secure service called iCORI. To register, employers must (1) provide identifying information for the individual user (or users) and the overall business; (2) provide information regarding the purpose behind requesting CORIs; (3) pay a nominal registration fee; and (3) designate an individual to access the account, who must undergo training and sign a contract. See 803 C.M.R. § 2.04(2).
To access an individual’s CORI, the employer should first submit a CORI Acknowledgement Form for each subject to be checked; verify the subject’s identity; obtain the subject’s signature on the Acknowledgment Form; and sign and date the CORI Acknowledgement Form certifying the subject was properly identified. 803 C.M.R. § 2.09(1). If an employer views information that leads a decision not to hire an applicant based on the CORI, or to seek further information regarding the applicant, it is important that the employer take appropriate steps. These steps include:
1. Notifying the applicant of the potential adverse action. 803 C.M.R. § 2.17.
2. Providing the applicant the opportunity to challenge the accuracy and relevance of the CORI. See 803 C.M.R. § 2.17 (providing procedure for adverse decision by agency).
a. Step 2 includes providing the applicant with a copy of their CORI, the employment agency’s CORI policy, and information from the CHSB’s information concerning the process for correcting his/her CORI.
3. If the concern is the entire criminal history, focus on any felony convictions and avoid misdemeanors or non-convictions. See G.L. c. 151B, § 9 (employer forbidden from asking about certain misdemeanors).
4. Inform the applicant what part, specifically, of the CORI makes the applicant ineligible.
5. Provide applicant opportunity to dispute the CORI’s accuracy and relevance (CORIs often have errors). And the applicant may provide supplemental information.
6. Finally, carefully document all steps taken to comply with 803 C.M.R. § 2.17.
Taking these steps will aid employers in making such decisions and avoid unnecessary legal costs. As a final jurisdictional note, the Criminal Records Review Board has the authority to hear or dismiss complaints brought by the Department of Criminal Justice Information Services against an entity allegedly violating CORI law. 803 C.M.R. § 2.27(5)(a) and (h). This includes the power to revoke CORI licenses, impose civil fines, and refer the violations to the appropriate state and federal criminal justice agencies. See 803 C.M.R. § 2.25(5)(j), (k) and (l); G.L. c. 6, § 178. Slighted applicants may also seek recourse tort, employment discrimination, or even constitutional claims.
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