Preemployment Inquiries Law Summaries
Kentucky, Preemployment Inquiries Law Summaries
Kentucky's job reference liability law, effective July 12, 2004, is located at Title XXXVI, Ch. 411. There are several laws in Kentucky pertaining to criminal background checks in employment. The State Department of Education requires all applicants who supervise or discipline children to undergo a criminal records check (Title XIII, Ch. 156). The provision pertaining to the employment of personnel in local school districts is at Title XIII, Ch. 160. Local boards of education are required to develop and adopt policies requiring a criminal records check on all volunteers (Ch. 336 (H. 136), L. 2000, effective July 14, 2000).
Provisions pertaining to the employment of personnel at child care organizations and child care facilities are located at Title III, Ch. 17, and in the Kentucky Administrative Regulations at Title 922, Ch. 2, Sec. 922 KAR 2:090E, as adopted effective November 1, 2001. Additional laws relating to the employment of personnel at health and dependent care facilities are located at Title XVIII, Ch. 216.
Agencies serving senior citizens are required to request conviction information from the Justice Cabinet for any applicant prior to employment (Sec. 216.787). The law relating to the employment of personnel in nursing, long-term care and assisted living facilities is located at Secs. 216.789 and 216.793.
Fire department, ambulance service and rescue squad personnel are required to undergo a criminal records check as a condition of employment (Title III, Ch. 17).
The full text of these laws is available beginning at Employment Practices Guide ¶18-23,600.01 .
Unless otherwise noted, references are to the Kentucky Revised Statutes Annotated.
WHAT THE EMPLOYER MUST DO
Background checks.-Department of Education.- The State Department of Education must not employ, in a position that involves supervisory or disciplinary power over a minor, any person who is a violent offender or has been convicted of a felony sex crime. The department may employ, at its discretion, persons convicted of misdemeanor sex crimes. The department must request all conviction information for any applicant from the Justice Cabinet prior to employment (Sec. 156.483(1)).
Each application form provided by the department to an applicant must conspicuously state the following: “FOR THIS TYPE OF EMPLOYMENT, STATE LAW REQUIRES A CRIMINAL RECORD CHECK AS A CONDITION OF EMPLOYMENT.” (Sec. 156.483(2)).
Any request for records as described above must be on a form approved by the Justice Cabinet, and the cabinet may charge a fee to be paid by the applicant in an amount no greater than the actual cost of processing the request (Sec. 156.483(3)).
District school employees.- No superintendent may employ in any position in the district any person who is a violent offender or has been convicted of a felony sex crime. The superintendent may employ, at his or her discretion, persons convicted of misdemeanor sex crimes (Sec. 160.380(3), as amended by H. 204, L. 2001, effective June 22, 2001).
A superintendent must require a national and state criminal background check on all new certified hires in the school district and student teachers assigned within the district. Excluded are certified individuals who were employed in another certified position in a Kentucky school district within six months of the date of hire and who had previously submitted to a national and state criminal background check for the previous employment (Sec. 160.380(4)(a), as amended by Ch. 177 (H. 88), L. 2005).
The superintendent must require that each new certified hire and student teacher submit to a national and state criminal history background check by the Kentucky State Police and the FBI (Sec. 160.380(4)(b), as amended by H. 204, L. 2001, effective June 22, 2001).
All fingerprints requested under this section must be on an applicant fingerprint card provided by the Kentucky State Police. The fingerprint cards must be forwarded to the FBI from the Kentucky State Police after a state criminal background check is conducted. The results of the state and federal criminal background check must be sent to the hiring superintendent. Any fee charged by the Kentucky State Police and the FBI must be no greater than the actual cost of processing the request and conducting the search (Sec. 160.380(4)(c), as amended by H. 204, L. 2001, effective June 22, 2001).
A superintendent must require a state criminal background check on all classified initial hires. The superintendent must require that each classified initial hire submit to a state criminal history background check by the Kentucky State Police. If an applicant has been a resident of Kentucky 12 months or less, the superintendent may require a national criminal history background check as a condition of employment. Any request for records under this section must be on an applicant fingerprint card provided by the Kentucky State Police. The results of the state criminal background check and the results of the national criminal history background check, if requested under the provisions of Sec. 160.380(4)(a) just above, shall be sent to the hiring superintendent. Any fee charged by the Kentucky State Police must be no greater than the actual cost of processing the request and conducting the search (Sec. 160.380(5), as amended by Ch. 177 (H. 88), L. 2005).
If a school term has begun and a certified or classified position remains unfilled or if a vacancy occurs during a school term, a superintendent may employ an individual who will have supervisory or disciplinary authority over minors on probationary status pending receipt of the criminal history background check. Application for the criminal record of a probationary employee must be made no later than the date probationary employment begins (Sec. 160.380(6)(a), as amended by H. 204, L. 2001, effective June 22, 2001).
Employment must be contingent on the receipt of the criminal history background check documenting that the probationary employee has no record of a sex crime nor as a violent offender (Sec. 160.380(6)(b), as amended by H. 204, L. 2001, effective June 22, 2001).
Probationary employment under this section must terminate on receipt by the school district of a criminal history background check documenting a record of a sex crime or as a violent offender and no further procedures will be required (Sec. 160.380(6)(c), as amended by H. 204, L. 2001, effective June 22, 2001).
Each application or renewal form provided by the employer to an applicant for a classified position must conspicuously state the following: “FOR THIS TYPE OF EMPLOYMENT, STATE LAW REQUIRES A STATE CRIMINAL HISTORY BACKGROUND CHECK AS A CONDITION OF EMPLOYMENT. UNDER CERTAIN CIRCUMSTANCES, A NATIONAL CRIMINAL HISTORY BACKGROUND CHECK MAY BE REQUIRED AS A CONDITION OF EMPLOYMENT” (Sec. 160.380(7)(a), as amended by Ch. 177 (H. 88), L. 2005).
Each application or renewal form provided by the employer to an applicant for a certified position must conspicuously state the following: “FOR THIS TYPE OF EMPLOYMENT, STATE LAW REQUIRES A NATIONAL AND STATE CRIMINAL HISTORY BACKGROUND CHECK AS A CONDITION OF EMPLOYMENT.” (Sec. 160.380(7)(b), as amended by H. 204, L. 2001, effective June 22, 2001).
Each application form for a district position shall require the applicant to (Sec. 160.380(7)(c), as amended by Ch. 177 (H. 88), L. 2005):
Identify the states in which he or she has maintained residency, including the dates of residency; and
Provide picture identification.
The provisions of Sec. 160.380(4), (5), (6), and (7) above apply to a nonfaculty coach or nonfaculty assistant (Sec. 160.380(8), as amended by H. 204, L. 2001, effective June 22, 2001).
School volunteers.- Each local board of education must develop and adopt a policy requiring a state criminal records check on all volunteers who have contact with students on a regularly scheduled or continuing basis, or who have supervisory responsibility for children at a school site or on school-sponsored trips (Ch. 336 (H. 136), L. 2000, effective July 14, 2000).
Nonpublic schools.- Beginning with the 2002-2003 school year, a private, parochial or church school that has voluntarily been certified by the Kentucky Board of Education in accordance with Sec. 156.160(3) may require a national and state criminal background check on all new certified hires in the school and student teachers assigned to the school. Certified individuals who were employed in another certified position in a Kentucky school within six months of the date of the hire and who had previously submitted to a national and state criminal background check for previous employment may be excluded from further checks (H. 595, L. 2002).
If a school requires a criminal background check for a new hire, the school must conspicuously include the following disclosure statement on each application or renewal form provided by the employer to an applicant for a certified position: STATE LAW AUTHORIZES THIS SCHOOL TO REQUIRE A CRIMINAL HISTORY BACKGROUND CHECK AS A CONDITION OF EMPLOYMENT FOR THIS TYPE OF POSITION (H. 595, L. 2002).
A nonpublic school voluntarily implementing the provisions of this chapter may choose not to employ any person who is a violent offender as defined by Sec. 17.165(2), has been convicted of a sex crime which is classified as a felony as defined by Sec. 17.165(1), or has committed a violent crime as defined in Sec. 17.165(3). A nonpublic school may employ, at its discretion, persons convicted of sex crimes classified as a misdemeanor (H. 595, L. 2002).
If a school term has begun and a certified position remains unfilled or if a vacancy occurs during a school term, a nonpublic school implementing this chapter may employ an individual who will have supervisory or disciplinary authority over minors on probationary status pending receipt of a criminal history background check (H. 595, L. 2002).
Employment at a nonpublic school implementing the provisions of this chapter may be contingent on the receipt of a criminal history background check documenting a record as a violent offender, of a sex crime, or of a violent crime as defined in Sec. 17.165 (H. 595, L. 2002).
Nonpublic schools implementing this chapter may terminate probationary employment under this section upon receipt of a criminal history background check documenting a record as a violent offender, of a sex crime, or of a violent crime as defined in Sec. 17.165 (H. 595, L. 2002).
Child care organizations.- An employer may request from the Justice Cabinet or the Administrative Office of the Courts, or both, records of all available convictions involving any felony offense, any misdemeanor offense in KRS Chapter 531 or KRS Chapter 510, any misdemeanor offense under KRS Chapter 218A committed within the five years immediately preceding the application, or any conviction for violating KRS Chapter 189A committed within the five years immediately preceding the application of a person who applies for employment or volunteers for a position in which he or she would have supervisory or disciplinary power over a minor. The cabinet or the Administrative Office of the Courts, as appropriate, must furnish the information to the requesting employer and must also send a copy of the information to the applicant (Sec. 17.160(1)).
Any request for records as described just above must be on a form approved by the cabinet and the Administrative Office of the Courts. No fee will be charged to the employer or to the person whose records were requested if funding for the record checks is provided through some other mechanism; otherwise, the cabinet or the Administrative Office of the Courts may charge a fee to be paid by the organization making the request, not to exceed the actual cost of processing the request (Sec. 17.160(2)).
As used in this section “employer” means any organization chartered by the Congress of the United States or specified by the Attorney General that employs or uses the services of volunteers or paid employees in positions in which the volunteer or employee has supervisory or disciplinary power over a child or children. An organization that has an administrative office with paid personnel which has jurisdiction over suborganizations in one or more counties must make application for record checks through the administrative office of the organization and not through each individual suborganization (Sec. 17.160(4)).
Offenses that may be searched for under this section are ones involving any conviction, plea of guilty, or Alford plea, to any offense specified in Sec. 17.160(1) above or the attempted violation of any such offense. Conviction for a violation or attempted violation of an offense committed outside of Kentucky is a crime if such offense would have been a crime in Kentucky under Sec. 17.160(1) above if committed in Kentucky (Sec. 17.160(5)).
Child-care centers.- No child-care center may employ, in a position that involves supervisory or disciplinary power over a minor, or direct contact with a minor, any person who is a violent offender or has been convicted of a sex crime. Each child-care center must request all conviction information for any applicant for employment from the Justice Cabinet or the Administrative Office of the Courts prior to employing the applicant (Sec. 17.165(4), as amended by Ch. 308 (H. 706), L. 2000, effective July 14, 2000).
No child-care provider that is required to be certified under Section 19 of this Act or that receives a public child-care subsidy administered by the cabinet or an adult who resides on the premises of the child-care provider and has direct contact with a minor shall have been convicted of a violent crime, or a sex crime, or have been found by the Cabinet for Families and Children or a court to have abused or neglected a child (Sec. 17.165(5), as amended by Ch. 308 (H. 706), L. 2000, effective July 14, 2000).
Each application form, provided by the employer to the applicant, must conspicuously state the following: “FOR THIS TYPE OF EMPLOYMENT, STATE LAW REQUIRES A CRIMINAL RECORD CHECK AS A CONDITION OF EMPLOYMENT.” (Sec. 17.165(6), as amended by Ch. 308 (H. 706), L. 2000, effective July 14, 2000).
Any request for records under Sec. 17.165(4) above must be on a form approved by the Justice Cabinet or the Administrative Office of the Courts, and the cabinet may charge a fee to be paid by the applicant in an amount no greater than the actual cost of processing the request (Sec. 17.165(7), as amended by Ch. 308 (H. 706), L. 2000, effective July 14, 2000).
This section applies to all applicants for initial employment in a position that involves supervisory or disciplinary power over a minor after July 15, 1988 (Sec. 17.165(8), as amended by Ch. 308 (H. 706), L. 2000, effective July 14, 2000).
Child care facilities (rule).- A provisional license shall be issued (922 KAR 2:090E):
pursuant to KRS 199.896(3); and
after each background check required by KRS 199.896(19) has been completed on behalf of an applicant for licensure.
A director, employee, or volunteer at a child care facility (922 KAR 2:090E):
may be employed or work with children on a probationary basis for up to 180 days, pending completion of a child abuse or neglect central registry check and criminal records check required by KRS 199.896(19); and
shall not be left alone in the presence of a child if each required background check has not been completed.
Upon completion of a central registry check or criminal records check, a licensee must discharge from employment a director, employee, or volunteer (922 KAR 2:090E):
whose name is listed on the central registry; or
who has been convicted of a crime defined by KRS 17.165(1) and (3).
The Cabinet for Health Services shall deny an application or suspend or revoke a provisional or regular license if the applicant for licensure, director, employee, or a person who has supervisory authority over a child (922 KAR 2:090E):
fails to meet the requirements of this administrative regulation or those of 922 KAR 2:110 or 922 KAR 2:120; or
fails to meet the requirement of KRS 199.896(19).
A child abuse or neglect central registry check required by KRS 199.896(19) shall be conducted (922 KAR 2:090E):
one time; and
at the time an individual (a) applies for initial licensure on or after July 14, 2000; (b) employment in a child care facility on or after July 14, 2000; or (b) volunteers in a child care facility on or after July 14, 2000.
Each child care facility employee or volunteer shall report to the licensee or facility's director an incident that occurs subsequent to the one time only background checks required by KRS 199.896(19) if the employee or volunteer (922 KAR 2:090E):
has been convicted of a violent crime or sex crime defined by KRS 17.165(1) and (3);
is the subject of a cabinet child abuse or neglect investigation; or
has been found by the cabinet or a court to have abused or neglected a child.
Each licensee shall report to the Cabinet for Health Services an incident that occurs subsequent to the one time only, statutorily-required background checks if the licensee, an employee, or volunteer meet the criteria outlined just above (922 KAR 2:090E).
Agencies serving senior citizens.- No agency providing services to senior citizens that are funded by the Department for Community Based Services of the Cabinet for Families and Children or the Office of Aging Services of the Cabinet for Health Services may employ persons in a position that involves providing direct services to a senior citizen if that person has been convicted of a felony offense related to theft; abuse or sale of illegal drugs; abuse, neglect, or exploitation of an adult; or the commission of a sex crime (Sec. 216.787(1), as amended by Ch. 6 (H. 80) and Ch. 14 (S. 24), L. 2000, effective July 14, 2000).
Operators of service provider agencies may employ persons convicted of or pleading guilty to misdemeanor offenses (Sec. 216.787(2), as amended by Ch. 6 (H. 80) and Ch. 14 (S. 24), L. 2000, effective July 14, 2000).
Each service provider agency providing direct services to senior citizens as specified under KRS 216.785 to 216.793 must request all conviction information from the Justice Cabinet for any applicant prior to employment (Sec. 216.787(3), as amended by Ch. 6 (H. 80) and Ch. 14 (S. 24), L. 2000, effective July 14, 2000).
Nursing, long-term care and assisted living facilities.- No long-term care facility, nursing pool providing staff to a nursing facility, or assisted living community may knowingly employ a person in a position that involves providing direct services to a resident or a client if that person has been convicted of a felony offense related to theft; abuse or sale of illegal drugs; abuse, neglect, or exploitation of an adult; or a sexual crime (Sec. 216.789(1), as amended by Ch. 141 (H. 148), L. 2000, effective July 14, 2000).
A nursing facility, nursing pool providing staff to a nursing facility, or assisted living community may employ persons convicted of or pleading guilty to a misdemeanor offense if the crime is not related to abuse, neglect, or exploitation of an adult (Sec. 216.789(2), as amended by Ch. 141 (H. 148), L. 2000, effective July 14, 2000).
Each long-term care facility, nursing pool providing staff to a nursing facility, or assisted living community facility must request all conviction information from the Justice Cabinet for any applicant for employment pursuant to KRS 216.793 (Sec. 216.789(3), as amended by Ch. 141 (H. 148), L. 2000, effective July 14, 2000).
The long-term care facility, nursing pool providing staff to a nursing facility, or assisted living community may temporarily employ an applicant pending the receipt of the conviction information (Sec. 216.789(4), as amended by Ch. 141 (H. 148), L. 2000, effective July 14, 2000).
Each application form provided by the employer, or each application form provided by a facility either contracted or operated by the Department for Mental Health and Mental Retardation Services of the Cabinet for Health Services, to the applicant for initial employment in an assisted living community, nursing facility, or nursing pool providing staff to a nursing facility, or in a position funded by the Department for Community Based Services of the Cabinet for Families and Children or the Office of Aging Services of the Cabinet for Health Services and that involves providing direct services to senior citizens must conspicuously state the following: “FOR THIS TYPE OF EMPLOYMENT STATE LAW REQUIRES A CRIMINAL RECORD CHECK AS A CONDITION OF EMPLOYMENT.” (Sec. 216.793(1), as amended by Ch. 6, (H. 80), Ch. 14 (S. 24), Ch. 141 (H. 148), and Ch. 283 (S. 137) L. 2000, effective July 14, 2000).
Any request for criminal records of an applicant as provided under Sec. 216.793(1) above must be on a form or through a process approved by the Justice Cabinet or the Administrative Office of the Courts. The Justice Cabinet or the Administrative Office of the Courts may charge a fee to be paid by the applicant or state agency in an amount no greater than the actual cost of processing the request (Sec. 216.793(2), as amended by Ch. 6, (H. 80), Ch. 14 (S. 24), Ch. 141 (H. 148), and Ch. 283 (S. 137) L. 2000, effective July 14, 2000).
Fire departments, ambulance services and rescue squads.- Any paid or volunteer fire department certified by the Commission on Fire Protection Personnel Standards and Education, ambulance service licensed by Kentucky, or rescue squad officially affiliated with a local disaster and emergency services organization or with the Division of Emergency Management may apply to the Justice Cabinet or the Administrative Office of the Courts for a felony offender record check on applicants for employment or membership with the fire department, ambulance service, or rescue squad (Sec. 17.167(2), as amended by Ch. 102 (S. 59), L. 2000, effective July 14, 2000).
Each application form, provided by a fire department, ambulance service, or rescue squad to an applicant for employment or membership, must conspicuously state the following: “FOR EMPLOYMENT WITH OR MEMBERSHIP WITH A FIRE DEPARTMENT, AMBULANCE SERVICE, OR RESCUE SQUAD, STATE LAW PERMITS A CRIMINAL RECORD CHECK AS A CONDITION OF EMPLOYMENT OR MEMBERSHIP.” (Sec. 17.167(3), as amended by Ch. 102 (S. 59), L. 2000, effective July 14, 2000).
Any request for records under this section must be on a form approved by the Justice Cabinet or the Administrative Office of the Courts. The Justice Cabinet and the Administrative Office of the Courts must not charge a fee for making record checks (Sec. 17.167(4), as amended by Ch. 102 (S. 59), L. 2000, effective July 14, 2000).
Job reference liability.- An employer that provides information, upon employee or prospective employer's request, about a current or former employee’s job performance, professional conduct or evaluation to a prospective employer is immune from civil liability arising out of the disclosure unless the plaintiff in the civil action proves that the employer disclosed the information knowing that it was false, with reckless disregard of whether it was true or false, or with intent to mislead the prospective employer. No immunity is available for the disclosure of information that constitutes an unlawful discriminatory practice under Kentucky law (Sec. 411.225).
This provision does not create a new cause of action or substantive legal right against an employer, nor does it limit an employer's immunity from civil liability or defenses established in other sections of the Kentucky statutes or its common law (Sec. 411.225).
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