The Massachusetts Department of Criminal Justice Information Services (DCJIS) recently issued final regulations to accompany the Massachusetts Criminal Offender Record Information (CORI) law. The law, which was passed in August 2010, significantly changed the way in which employers screen the criminal histories of applicants and employees. The new regulations, which went into effect immediately, clarify how employers obtain and use criminal history information.

The Final Regulations provide that any employer “that annually conducts five or more criminal background investigations, whether CORI is obtained from DCJIS or any other source, shall maintain a written CORI policy. The Final Regulations also state that a required CORI policy “must meet the minimum standards of the DCJIS model CORI policy,” which is available on the DCJIS website. Notably, this model policy appears to go well beyond the literal requirements of the CORI Reform Law, as it covers such matters as (i) which personnel should be given access to CORI, (ii) providing CORI training for authorized personnel, and (iii) the use of CORI in hiring decisions.

Using CORI or Other Criminal Information: If an employer seeks to question an individual about his/her criminal history or seeks to make an adverse employment decision based on the individual’s criminal history (regardless of whether it uses iCORI or a consumer reporting agency), the employer must:

  • Notify the individual in person, by telephone, fax, or electronic or hard copy correspondence of the potential adverse employment action;
  • Provide a copy of the individual’s CORI or other criminal history information to the individual;
  • Provide a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act” published by the Federal Trade Commission (if using a consumer reporting agency) to the individual;
  • Provide a copy of the employer’s CORI Policy, if applicable, to the individual;
  • Identify the information in the individual’s CORI that is the basis for the potential adverse action;
  • Provide the individual with the opportunity to dispute the accuracy of the information contained in the CORI or other criminal history information;
  • Provide the individual with a copy of DCJIS information regarding the process for correcting CORI or criminal records; and
  • Document all steps taken to comply with these requirements.

The new law provides a safe harbor for employers who rely solely on official CORI reports and otherwise comply with the requirements of this law. Employers who make hiring decisions within 90 days of receiving a CORI report will not be held liable for negligent hiring or failure to hire claims.