Update on CORI Reform
As we noted in our recent Legal Alert, most of the key provisions of the new CORI Reform law go into effect on May 4, 2012. May 4 is just days away, but the Department of Criminal Justice Information Services (DCJIS) (formerly the Criminal History Systems Board) still has not formally adopted its proposed CORI regulations nor updated the model policy on its website. Yesterday, I spoke with one of the attorneys at the DCJIS to find out where things stand and whether employers can expect more guidance before the deadline.
The DCJIS attorney informed me that DCJIS expects to have its new web-based criminal background check system, iCORI, up and running by May 7. As of that date, any employer will be able to register for an iCORI account and obtain “Standard Access” to CORI, which includes felony convictions disposed of within the past ten years, misdemeanors disposed of within the past five years, pending charges and certain other information. Employers that register for iCORI will be subject to strict procedures with respect to how they access and use the information. For example, an employer will not be permitted to deny employment to an applicant due to information on a CORI report unless the employer first provides the individual with a copy of the report and information on how to correct any errors. Employers that annually conduct five or more criminal background checks, whether through DCJIS or some other source, will be required to implement a written CORI policy. These and other requirements are set forth in detail in the proposed regulations. Employers that do not comply with the law and regulations can be subject to criminal penalties and civil liability.
At this point, however, it’s not totally clear exactly what employers will be expected to comply with. The DCJIS attorney confirmed that, as of the date of this blog, the proposed regulations have not been formally adopted. DCJIS is still considering the many comments that were submitted, both in writing and during the public hearing that was held on March 30. Click here for a sample of some of the comments that were made. According to the DCJIS attorney, if DCJIS decides to make major changes to the proposed regulations based those comments, DCJIS will likely post revised regulations on its website and invite further comment. Otherwise, they will probably be adopted in their current form on May 4. Our best guess is that those portions of the regulations dealing with procedural requirements are likely to remain largely unchanged.
DCJIS is working on updating their model CORI policy, and the attorney reports that it will probably be very similar to the one that is currently on its website. Employers may want to use the existing model policy as a starting point, and revise it as appropriate for their business. The currently-posted policy largely complies with the new law, but it incorrectly refers to CHSB instead of DCJIS, and other changes could be made to better track the statute. Employers should consult with counsel to ensure that their policy complies with the new statute and proposed regulations. For example, if the employer obtains the criminal history information from a source other than DCJIS (such as a consumer reporting agency), different procedures apply.
Feel free to contact a member of the HRW CORI team – Cathy Reuben, Dave Wilson, Sheryl Eisenberg and Kristy Avino – for further updates and compliance assistance.