The final changes brought about by the CORI Reform Law went into effect on May 4, 2012 and, with those changes, how employers access and use a job applicant’s criminal history has changed. Employers must comply with the new procedures or may face fines up to $50,000.
When and how may an employer access CORI under the new law?
One of the most significant changes brought about by the CORI Reform Law affects when employers may ask applicants about their criminal history, also known as their Criminal Offender Record Information (CORI). Employers are no longer permitted to ask about CORI on an initial written application. Instead, they must wait until the interview of the candidate.
How employers access CORI has changed as well. Requests for CORI should be submitted through iCORI, a new, secure web-based service. Employers must designate one employee to conduct CORI checks and must also keep a log that records to whom and why CORI has been disseminated. Those who access CORI five or more times a year are required to maintain a written CORI policy which meets certain minimum standards. They may only keep CORI for seven years from the last date of employment or the final decision concerning the application. The Department of Criminal Justice Information Services (DCJIS), which oversees the release of CORI, has the right to audit CORI logs.
What CORI information may an employer access?
An iCORI report will list all of a job applicant’s convictions for sex offenses, murder and manslaughter; felony convictions within the past 10 years (or for 10 years after release from incarceration); and misdemeanor convictions within the past 5 years (or for 5 years after release from incarceration). It will not include sealed records, nor will it disclose that a sealed record exists. It will, however, include information about an applicant’s open cases – pending criminal charges or open continuances without a finding (CWOFs).
Employers that are permitted by statute or regulation to access additional CORI (such as banks or employers who work with vulnerable populations, such as children) will continue to have access to a wider range of CORI.
May employers take adverse action based upon CORI?
The CORI Reform Law does not prohibit employers from making an adverse hiring decision based on CORI (though an employer should not base a hiring decision on an applicant’s open cases). However, an employer may not make an adverse hiring decision based on an applicant or employee’s (i) prior arrest, detention, or disposition that did not result in a conviction; (ii) first conviction for drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbing the peace; or (iii) misdemeanor conviction (or incarceration for such) more than five years old.
An employer that uses CORI in the hiring process must provide a copy of the CORI in their possession to the applicant along with a copy of their CORI policy before asking an applicant about it and/or before making an adverse decision based on the CORI. They must also give the applicant an opportunity to dispute the accuracy of the CORI report and provide them a publication prepared by DCJIS explaining the process for correcting inaccurate CORI.
The statute protects employers who make hiring decisions based solely on iCORI reports within 90 days of receiving the report and provides that they will be held harmless in negligent hiring lawsuits based upon claims that they should have conducted additional background checks, as long as the employer followed the procedures in the DCJIS regulations.