March 2014 Meeting

NPFM-Admin

Criminal Offender Record Information (CORI):
How to be diligent and fair with background checks (and not get into trouble).

Greg Massing, Executive Director of the Rappaport Center for Law and Public Service at Suffolk University Law School, was instrumental in drafting, passing, and implementing the Commonwealth’s CORI reform legislation as a member of the Patrick Administration from 2007 to 2011. Dave Wilson, a partner at Hirsch Roberts Weinstein LLP, advises businesses and non-profits on employment matters, including how to navigate the Commonwealth’s CORI and non-discrimination laws in the hiring process.

Their handouts, posted on our website, contain significant basic information: a CORI FAQs (w/ several important URLs for further information); CORI Hiring Timeline chart in light of new CORI law; sample initial, and sample supplemental written job application form for Massachusetts; and a sample CORI report.
Primary forms of background checks available in Massachusetts are:

Massachusetts CORIs (Criminal Offender Report Information) only report on Massachusetts records, so their use and relevance must be evaluated in the context of an individual’s situation. Has the individual always resided in Massachusetts? If they’ve been out-of-state, a National/regional background check may be indicated.

Level 3 Sex Offenders must always report & register their residence, and their SORI can be searched for online. Level 2 Sex Offender information can be obtained through the offender’s local police department and through the Sex Offender Registry Board, and may soon be available online as well. Level 1 Sex Offender information is not generally available to the public.

Not covered in any detail in this discussion were the Massachusetts requirements for fingerprint-based state and national criminal history checks.

Massachusetts CORI regulations, requirements and practice have changed considerably since 2010, with most CORI reform measures having gone into effect on May 4, 2012: these changes were made in part to start improving background check options, accuracy and relevance for those needing to perform due diligence. Consequently, Massachusetts CORI reports are now available to almost all organizations and individuals, at 5 informational detail levels with access based on “need to know.” “Standard” CORI reports, available to the general public, automatically seal reported offenses sooner than they did prior to 2010: 10 years for a felony conviction, 5 years for a misdemeanor. Procedures for individuals to correct erroneous information in their records have been simplified as well. The CORI report format is also more readable, with better information available for report “code” translations.

Some strict regulations govern the how & when re: permitted use of a CORI report. (See important information in the posted handouts.) It is considered a good practice to give an individual the chance to explain the circumstances related to their CORI report, but it is not legally required. Instead, they must be given the report, identifying the element(s) for their rejection, and provided with the opportunity to correct any inaccuracies in the report. Under the “ban the box” requirement, it is not legal to ask about an applicant’s CORI in an initial written application form and it is problematic to discuss it during the initial interview. It is not legal to ask about an arrest record (have you ever been arrested?) at any time.

Due to the possible discriminatory effects attached to the interpretation of a CORI report (such as the documented disproportion of the criminal justice system’s impact on communities of color), significant responsibility rests with organizations to recognize & understand the broader meaning of a CORI report. It is important in discussing a criminal record to avoid questions or discussions that could tip into discriminatory behavior/conversations. One way to do this is to clearly identify what the job requires. Questions can then be phrased: “this job requires you to do XYZ…Is this something you can do…?”

To what extent can you be held liable if the CORI or the private background check report is actually wrong? If you relied on a private background check, you have no protection from the Massachusetts CORI statute from liability if the report is in error. Information gathered from out-of-state sources, whether through a private background check company or not, can have widely divergent degrees of accuracy. If you relied on the MA CORI report, you are not liable even if the report turns out to be inaccurate.

When and how often should you CORI employees? At hire? Annually? Every three years? See the handout for further important information about when you may be required to run a CORI. Requirements vary depending on the nature of your organization (e.g., running a day care center or after school program, having the occasional HS intern). There are other times when due diligence and common sense (such as for financial personnel) would make a CORI check reasonable. It’s useful to ask – what’s the worst case scenario? What about running a report on your cleaning service? Not being their employer, you can’t run a CORI – BUT, you can require that your vendor runs them. (Your insurance agent may be able to help you understand what requirements you may ask of your vendors in this regard.)

HOW TO READ A CORI: the report you receive depends on your permitted level of access. After reviewing the basic header information (date requested, individual’s name, DOB, address, gender, height, weight, etc., to help insure that you have the right record), Dave Wilson suggests starting the report review from its end – i.e., the oldest information. Note that the report will give the appearance & final disposition dates, but not the date of the reported offense. Pending cases will list, and closed ones will be reported according the access status of the requesting organization. The start date for the “sealing” period is as of end of probationary period or release from prison (i.e., not as of end of parole). Records of a certain age will be sealed & not reported (depending on the access level of the requesting organization); but convictions subsequent to and occurring during the “sealing period” of a prior record trigger the reporting of such prior records. An overview of current CORI status & references, including a link to a PDF w/ explanation of “Disposition Codes” used in CORI reports is available at: http://www.lawlib.state.ma.us/subject/about/cori.html

Every CORI-registered organization must have at least one CORI representative, responsible for insuring the organization’s compliance w/ CORI regulations & procedures. Massachusetts CORI checks are inexpensive: and many non-profits may qualify for fee waivers. (See recent 3/27/14, 4:24pm USES email to listserv, and URL).

For a brief comparison of the major changes since the recent reform, see: ACLU website, http://aclum.org/sites/all/files/legislative/cori_reform_explained.pdf).
You can also find information for advocates and people with CORIs at Mass Legal Help: http://www.masslegalhelp.org/cori

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