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CORI reform still allows private background checks

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The part of the new Massachusetts law that prohibits inquiring about criminal records on initial job applications leaves an opening for employers to acquire the same information directly from the state or specialized businesses that do background checks.

Legislative and public attention to the changes in the Criminal Offender Record Information Act, known as CORI, focused on shortening the periods most convictions are accessible, down to 10 years for felonies and 5 years for misdemeanors.

Another provision eliminates the standard question on many employment applications about whether the job-seeker has a criminal history. Activists based in California have launched a national campaign to “ban the box,” as they call it.

The goal is to help former offenders who are otherwise qualified get past initial screenings. Studies have shown ex-offenders are more likely to be hired if they actually get an interview, when they can explain their past problems with law in person.

The state that pioneered the ban went further than Massachusetts to help former offenders reach the final stages of the hiring process.

In 1998, Hawaii became the first state to forbid most employers from asking about convictions on applications. That state’s law also prohibits the consideration of criminal records “until after the prospective employee has received a conditional offer of employment” that an employer can withdraw if the convictions have a “rational relationship” to a job’s duties.

The new Massachusetts ban, which takes effect Nov. 4, contains no such restrictions. The state’s employers can ask about convictions in job interviews, as legislators anticipated. They could also winnow the final hiring pool before that stage by running a CORI check of state records or retaining the services of a background screening company.

An employer’s right to do a CORI check before interviewing candidates has one significant constraint: An applicant must first sign an authorization form. No prior approval is needed for unofficial background checks by screening companies.

The new law “does not preclude an employer from conducting a CORI search,” acknowledged Terrel Harris, communications director for the state Executive Office of Public Safety and Security.

“The idea behind the reform is getting the potential employee in the door … preventing an employer from automatically excluding an applicant because he has a criminal record,” Harris added. “The hope, the thinking behind the law is that an employer won’t do a CORI search unless he’s interested in the potential employee, and if he initiates a CORI search, he’ll discuss the finding with the potential employee. At any rate, the new law requires an employer to provide a copy of the search to the potential employee.”

Bradley MacDougall, associate vice president for government affairs of Associated Industries of Massachusetts, said pre-interview CORI checks may be possible but businesses are waiting for the state to issue rules and regulations implementing the law.

State Sen. Sonia Chang-Diaz said legislators had discussed the idea of postponing CORI checks until employers determined which applicants are qualified. The ban adopted, she said, was intended to help applicants with a criminal record “get a foot in the door” so they can tell the “full story” behind convictions.

“It’s a common frustration for job applicants to never be able to break through that first level” but instead continually undergo “the dehumanizing experience of never getting a face-to-face” interview with a potential employer, Chang-Diaz said.

Massachusetts and Hawaii are the only states with “ban the box” laws that apply to public and private employers, with exceptions for those operating under other legal mandates to check criminal records, such as schools and day-care centers. New laws in Connecticut, Minnesota and New Mexico, all passed this year or last, cover personnel practices at public agencies only.

Besides those five states, about two dozen cities or counties have similar bans for their own hiring, including Boston, Cambridge and Worcester. The ordinances in the three Massachusetts cities, which extend to their vendors and contractors, are not superseded by the new state law, Harris said.

Hawaii is the only state with long enough experience with the ban to evaluate its impact on the employment and recidivism rates of ex-offenders. Such a study has not been done, according to the National Employment Law Project, which provides technical assistance to state and local governments.

A study in Minneapolis, where a ban took effect for city hiring in 2007, showed far fewer applicants were rejected because of past convictions. About 60 percent of applicants whose background checks detected a potential problem were hired, compared to 6 percent previously.

As most employers in Hawaii must do, the city of Minneapolis can consider conviction records only after a conditional job offer has been made to an applicant.