Seyfarth Synopsis: The Massachusetts Department of Criminal Justice Information Services recently amended the provisions of the Commonwealth’s CORI regulations that govern how employers conduct criminal history checks. Employers should review their CORI practices to ensure compliance with these amended regulations, the key provisions of which are highlighted herein.
As most Massachusetts employers know, in May 2012 the legislature passed sweeping reform to the Commonwealth’s Criminal Offender Record Information (CORI) law. Shortly thereafter, the Department of Criminal Justice Information Services (DCJIS) issued regulations implementing the new law. The DCJIS recently proposed changes to those original regulations, and the final amended regulations have now been issued by the Secretary of State’s Office. While many of the revisions address non-substantive housekeeping matters, a number of changes will require employers to modify their criminal history background check process.
The following changes will have the biggest impact on employers:
Who is an Employee?
The regulations expand the definition of employee to include not only traditional employees and volunteers, but also contractors, subcontractors, vendors, and special state, county or municipal employees. DCJIS has indicated that including contractors, sub-contractors and vendors in the definition of employee is consistent with the Criminal Record Review Board’s (CRRB) interpretation and is meant to provide employers with the authority to run background checks on individuals holding or applying for such positions. From the employers’ perspective, DCJIS has expanded the definition of employee well beyond its traditional meaning, and in a manner that is at odds with the definition of this term under other state and federal laws, leading to possible uncertainty for employers.
What is CORI?
The prior regulations did not define “Criminal Offender Record Information,” beyond a list of examples of information included or excluded from CORI. Although the regulations now define CORI, the definition continues to leave some uncertainty as to what information, outside of that specifically provided by DCJIS, constitutes CORI. The regulations continue to exclude published records of public court, judicial or administrative proceedings from the definition of CORI. Most employers have interpreted this to mean that information obtained directly from state or federal courts (the primary source of criminal history information provided by background screening companies) is not CORI and, thus, not subject to the rules regulating the use of CORI obtained from DCJIS. Despite public comments asking for DCJIS to make this exception more explicit, it declined to do so.
The regulations also now specifically exclude from the definition of CORI, information related to criminal proceedings that were initiated against an individual before he or she turned 18, unless the individual is adjudicated as an adult. Prior to the revisions, this threshold was 17. This change was part of a larger effort by the legislature to expand juvenile jurisdiction until an individual turns 18.
"Need to Know” List and New iCORI Agency Agreement:
The revised regulations require employers to enter into an iCORI Agency Agreement prior to obtaining and/or renewing electronic access to the iCORI system. The iCORI Agency Agreement will, at a minimum, include the employer’s representation that: (1) it will comply with the CORI laws and regulations; (2) it will maintain an up to date “need to know” list of staff that the employer has authorized to request, receive or review CORI information and to provide all staff on the “need to know” list with all CORI training materials; (3) it will only request the level of CORI access authorized under statute or by the DCJIS; and (4) it (and any individual users of the employer’s iCORI account) will be liable for any violations of the CORI law or regulations.
The “need to know” list provision specifically requires that employers maintain a list of employees with access to CORI, update the list, at least, every six months, and provide it to the DCJIS upon request. The DCJIS had previously included this requirement in its Model CORI Policy (available on its website), but has now codified this requirement in the regulations.
The DCJIS has not yet issued the iCORI Agency Agreement, which may include additional requirements.
CORI Acknowledgment Forms:
DCJIS has made several changes to the regulations that affect the collection, use and destruction of CORI Acknowledgment Forms.
The new regulations specifically permit employers to collect CORI Acknowledgment Forms electronically, including as part of an employer’s electronic job application. Although allowing electronic collection of these forms is a positive step, employers should be cautious about collecting date of birth and other demographic information required for CORI Acknowledgment Forms in the course of a job application and need to ensure that any background check forms meet the requirements of other laws including the federal Fair Credit Reporting Act.
The DCJIS maintains Model CORI Acknowledgment forms on its website. The new regulations contemplate that employers may either use the model forms or incorporate the language into its own form.
The regulations continue to require that employers verify the identity of individuals for whom they run a background check by reviewing a suitable form of government issued identification. The new regulations now specify that suitable forms of identification must contain a photograph, and that in the event that an individual does not have a suitable form of government issued identification, an employer may verify identity by reviewing either the individual’s birth certificate or social security card. To the extent that an employer cannot do this verification in person, the regulations continue to allow an individual to submit a notarized Acknowledgment Form, either in written form or electronically.
Under the prior regulations, employers could submit a new request for a CORI check within one year of an individual having signed the CORI Acknowledgment Form, but were required to provide the individual with written notice at least 72 hours before submitting the request. The new regulations eliminate the 72-hour notice requirement and allow employers to run an additional check provided that the employer notifies the subject on the Acknowledgment Form that a CORI check may be requested within one year. DCJIS has indicated it will revise the CORI Acknowledgment Form available on its website to reflect this change. For checks conducted after one year, employers must submit a new CORI Acknowledgment Form; however, if the information on the form exactly matches the information on the expired CORI Acknowledgement Form, an employer is not required to verify the individual’s identity a second time.
The new regulations clarify that in addition to destroying all CORI reports, employers must also destroy all CORI Acknowledgment Forms. The regulations also specify acceptable means of destroying hard copies and electronically stored CORI.
Storing CORI in the Cloud:
In recognition of changing technology, DCJIS now permits employers to store CORI using cloud storage methods. DCJIS requires employers using cloud storage to have a written agreement with the provider and that the storage method provide for encryption and password protection. The regulations initially required that all cloud storage agreements be reviewed and approved by DCJIS. Following receipt of public comments, DCJIS amended the proposed regulation to remove this requirement and will instead issue guidelines regarding such cloud storage agreements and will require employers to make these agreements available to DCJIS upon request.
Additional Information for Pre-Adverse Action Notices:
Currently, employers that contemplate adverse action against an employee because of information in a CORI report obtained through DCJIS are required to provide the subject of that report with certain information, including identifying the information in the report that is the basis for potential adverse action. Previously, the requirement to specifically identify this information did not apply to criminal history information obtained from a source other than DCJIS. The new regulations require that employers who obtain CORI identify the specific information that is the basis for the potential adverse action, even when criminal history information is obtained from a source other than DCJIS. The regulations do not seem to extend this requirement to background screening companies that are required only to identify the information in the “subject’s CORI” that is the basis for the potential adverse action. The regulations do, however, now require background screening companies to identify the source of criminal history information.
The regulations also continue to require employers (assuming the employer acts as a decision-maker or has direct contact with the subject of the background check) that conduct five or more criminal background checks to maintain a background check policy and to provide of copy of the policy with pre-adverse action notifications. This is the case whether CORI is obtained from DCJIS or any other source. DCJIS has, however, limited the requirement that an employer provide DCJIS Information Concerning the Process in Correcting a Criminal Record to those instances where CORI is considered as part of a potential adverse action. Employers should review their pre-adverse action notifications to ensure they comply with these requirements.
Obtaining CORI from Background Screening Companies:
The regulations continue to allow background screening companies to obtain CORI on behalf of employers, but maintain the restrictions on the storage of this information which led many background screening companies to cease providing CORI. Specifically, the regulations continue to prohibit background screening companies from electronically or physically storing CORI results, unless the background screening company is authorized by the employer to act as the decision maker. In practice, employers very rarely enlist background check companies to act in this capacity, and many background check companies are hesitant to take on this role. Despite public comments asking DCJIS to reconsider this restriction, the regulations continue to impose this barrier to employers that use background screening companies.
Additionally, the regulations have made clear that an employer must provide a statement to the background screening company indicating whether the annual salary of the position for which the subject is being screened is either above or below $75,000.
Employers should work with their legal counsel and background check providers to ensure that their procedures and forms are in compliance with these new changes.