By Natalya Koshnitsky, Marketing Manager and Newsletter Editor, Resource Partnership
Interest in the subject of CORI (Criminal Offender Record Information) came about as a result of our recent e-newsletter customer satisfaction survey. In that survey some of the readers inquired about the influence of the CORI report on employment. For this issue of our newsletter, I had the opportunity to interview Ernest (Tony) Winsor, Esq., Attorney at the CORI Project at the Massachusetts Law Reform Institute, who helps us understand CORI law and what people can do to reduce this barrier to employment.
Q: Mr. Winsor, could you please explain what the Criminal Offender Record Information (CORI) is and who keeps it?
A: CORI is the Massachusetts term for Massachusetts’s criminal records. The information is kept in a database in the Office of the Commissioner of Probation (OCP) and the Criminal History Systems Board (CHSB). The latter gets the raw information from the OCP database, (called variously the “CARI” [ Court Activity Record Information], the “BOP” [ Board of Probation] and the “Probation Central File”) customizes and distributes the information in a “CORI report” to the authorized requesters.
Q: What information does the database or the CARI contain?
A: The CARI contains all court-generated information related to a criminal charge. Depending on the recipient of this information, CHSB may transmit the report containing just information about cases that had convictions, or it may contain non-conviction case information, as when a case ended in a determination of no probable cause, or a not guilty, or a simple dismissal.
Q: Why do some CORI reports contain information about convictions only while other CORI reports contain non-conviction case information?
A: It depends on different factors – mainly the requestor’s certification. Some organizations are certified to obtain conviction or open cases only and some have access to non-conviction cases as well. For instance, housing authorities, when they are screening personnel to let them into a housing development, are supposed to obtain only conviction and open case information. Meanwhile, other organizations, such as the Department of Youth Services when checking a house where a child is going to be placed, can legally get a non-conviction CORI. There are also occasional cases when the Criminal History Systems Board makes a mistake and sends out non-conviction CORI to organizations that are not authorized to have it.
Q: How can individuals obtain their CORI record?
A: There are two ways. One is to call the legal office of CHSB at 617-660-4760 and ask that the necessary forms be sent. The other way is to go online at www.mass.gov/chsband locate the forms.
Q: Which employers are eligible to request CORI?
A: The CHSB estimates that there are over 10,000 organizations that have been certified for access to CORI since the system began after 1973. Although we are not certain, we think that most of these are employers. Under the initial law, only criminal justice agencies and other government agencies had access to CORI. However, more recent enactments have permitted, and in some cases mandated, that CORI checks be done. For example, a broad class of government and private social service agencies must perform a CORI check before hiring or taking on as a volunteer anyone who “will have any direct or indirect contact” with a client who is elderly (60 or older) or is disabled so as to be wholly or partially dependent on others to meet daily living needs. Additionally, Chapter 385 of the Acts of 2002 mandates CORI checks for anyone working for organizations serving children.
Q: What CORI-related questions are legal to ask during the interview and hiring process and what questions are illegal?
A: Under the CHSB law it is illegal to ask the applicant to obtain his or her own CORI and bring it to the prospective employer. The state anti-discrimination statute has provisions, which forbid an employer "in any . . . matter relating to the employment of any person" to ask the applicant or employee about (i) an arrest or court proceeding where no conviction resulted, (ii) a first conviction of certain minor misdemeanors: drunkenness, simple assault, speeding or minor traffic violations, affray or disturbance of the peace; or (iii) conviction of a misdemeanor where the date of conviction, or the end of incarceration, whichever is later, occurred 5 or more years (without intervening convictions) before the request.
What employers may and do ask is whether or not the applicant has ever been convicted of a felony . This can be a perilous question to answer: unless the applicant knows the answer, it is wisest for him or her to say that he or she does not know. If the applicant says ‘No’, and the CORI report shows the answer should have been ‘Yes’, the wrong answer may eliminate the applicant from consideration for lying in the application process. But if the applicant says ‘Yes’, when the truth may be ‘No’, he or she may be eliminated from consideration before the employer even seeks a CORI report.
Q: Why is it illegal for an employer to ask an applicant to supply his or her own CORI report?
A: This regulation protects the person who has a CORI from inadvertently giving the party who requested the CORI information to which they do not have a legal right.
Q: What can job seekers do, if anything, to remove information from their CORI reports that may be hurting their chances at obtaining employment, such as cases that were dismissed or where there were no convictions?
A: First of all I would recommend job seekers with any past criminal record to obtain their CORI and check for accuracy. If they find it inaccurate, they have to try to correct the information by bringing the matter to the attention of the clerk or probation officer of the court. (CHSB on its website suggests calling the CARI Unit at OCP, 617-727-5300.) Job seekers can also try to get their record “sealed”. They can do it in two cases, either when their record has “aged out”, i.e., if the final disposition took place more than 10 years ago, or the case ended favorably for the defendant. While in the first case, the process is fairly easy and straight forward, it is ironic, that in the second case, the process is much more complicated. People with non-conviction CORI have to convince the judge that there is a "compelling state interest," based on the particular facts of the situation, which overcomes the 1st Amendment interest in keeping the record open.
I think the best practices are to (a) get and analyze the criminal case records from the court; (b) prepare and file with the petition a petitioner’s affidavit of the facts which demonstrate how the client is being, or is highly likely to be, harmed if the CORI is not sealed; and (c) prepare and file a memo of facts and law, urging the sealing. And, if you fail, remember that a non-conviction case, which is aged-out under section100A, may be sealed under that section.
Q: In which cases is it legal for an employer not to offer a job based on the applicant’s CORI history and in which cases is it illegal?
A: Right now an employer may reject any applicant no matter what the CORI report says. Currently, there are no legally binding rules. If the Massachusetts Alliance to Reform CORI (MARC) is able to get its reform bill (Public Safety Act of 2007) through this year, there will be a relevance requirement, and it will be unlawful to exclude an applicant merely for having CORI.
Q: In which industries or careers do candidates with CORI history typically work?
A: I have no hard numbers on this, but the construction trades, warehousing and similar trades seem to be more willing to hire persons with criminal records than other employers.
Q: What can a job seeker with a past criminal record do to lower the barrier to employment based on a criminal history?
A: As I mentioned before, job seekers who have a non-conviction CORI have to try to have their case sealed. Otherwise it is important that they obtain letters of reference from their previous employers and coworkers. They have to find somebody whose opinion is going to be respected by the prospective employer. Job seekers with CORI also have rights under a number of laws. For example, an e mployer is required to check the qualification of the candidate first before performing his/her CORI check. Also, if a certain part of the CORI troubles the employer, the employer must give the applicant the opportunity to dispute the accuracy of the CORI.
Human service providers can also write a letter of recommendation to an employer based on their work with the applicant. Additionally, they can connect applicants with legal organizations that can help them to better understand their rights.
Thank you very much Mr. Winsor for providing this information on CORI.
May 2007
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