NEW LIMITS ON EMPLOYER ACCESS TO AND USE OF CRIMINAL RECORDS TAKE EFFECT ON
MAY 4, 2012
In 2010, we advised you of new legislation designed to overhaul the Criminal Offender Record Information (CORI) system. When enacted, this law streamlined access to criminal records through an online database to be managed by the newly created State Department of Criminal Justice Information Services (DCJIS), which replaced the Criminal History Systems Board. Effective November 4, 2010, it prohibited employers, with certain exceptions, from requesting criminal record information on "initial written applications." The remaining requirements of this law take effect on May 4, 2012, and include
- An employer in possession of an applicant's criminal offender record information, regardless of the source, must provide the record to the applicant before questioning him/her about the record or making an adverse decision based upon the record.
- Employers conducting five or more criminal background investigations annually must maintain a written criminal offender record information policy. The policy must state that the employer will: (1) notify applicants of a potential adverse decision based upon criminal record information; (2) provide a copy of the criminal record information and the policy to applicants; and (3) provide applicants with information concerning the process to correct a criminal record.
- Employers must not disseminate criminal offender record information except at the employee's or applicant's request or to individuals within its business that have a legitimate "need to know." In the event information is disseminated, the employer must maintain a "secondary dissemination log" for a period of one year following dissemination indicating to whom the information was disseminated.
- Unless otherwise provided by law or court order, employers may not maintain criminal offender record information for more than seven years after the last date of employment or the date of the final decision not to hire the applicant.
In addition, under the new requirements, DCJIS will not provide employers information regarding most felony convictions older than 10 years and misdemeanor convictions older than 5 years. Information concerning convictions for murder, manslaughter, and sexual offenses will remain, however, permanently available. Certain employers, such as operators of camps for children, nursing homes and others, will continue to have broader access to information as previously permitted by statute concerning those employers.
Employers relying upon criminal offender record information provided by the DCJIS will also enjoy certain protections from liability for employment decisions made within 90 days of receiving and verifying criminal offender record information. For such decisions, employers will not be liable for: (1) claims of negligent hiring by reason of relying solely upon the information provided by the DCJIS and not performing additional background checks; or (2) claims of discriminatory employment practices for failure to hire a person based upon erroneous criminal offender record information provided by the DCJIS.
We recommend employers review their policies and procedures and revise them accordingly in light of the new requirements above. Please feel free to contact us if you have questions about the new requirements or require assistance in preparing an appropriate policy.