Preemployment Inquiries Law Summaries
Alabama, Preemployment Inquiries Law Summaries
The state has several laws pertaining to criminal background checks in employment. The Alabama Child Protection Act of 1999 provides that the State Superintendent of Education, local boards of education, and other nonpublic schools may conduct criminal history background checks on prospective and certain current employees to ensure they have not been convicted of a crime that relates to the safety and well-being of children. The law, enacted by Act 361 (H. 402), L. 1999, is located in the Alabama Code at Title 16, Chapter 22A.
The state has also enacted a law requiring criminal background checks for licensees, license applicants, volunteers, volunteer applicants, and prospective and current employees of licensed or approved child and adult care facilities (S. 273, L. 2000).
The Department of Mental Health and Mental Retardation is permitted to secure criminal history background information on persons it employs or contracts with to be direct care providers to clients and patients. This law is located in the Alabama Code at Title 22, Chapter 50, Article 5.
Provisions pertaining to employment in campus police departments of colleges/universities offering medical, nursing or health care education are located in the Alabama Code at Title 41, Chapter 9. Provisions pertaining to employment in licensed nuclear facilities are located in the Alabama Code at Title 22, Chapter 14, Sections 22-14-30 through 22-14-33.
DEFINITIONS
The following definitions apply to the Alabama Child Protection Act of 1999:
“Applicant” means an individual who submits an application for employment to a local employing board or any nonpublic school, to act in any capacity in which the applicant will have unsupervised access to children in an educational environment. Applicants further include any person seeking certification issued by the State Superintendent of Education (Sec. 16-22A-3, as amended by H. 132, L. 2000, effective July 1, 2000).
“Authorized employer” Any educational entity authorized to obtain criminal history background information, including the State Department of Education, local employing boards, and nonpublic schools that are responsible for hiring employees or contracting with private employers to provide personnel who have unsupervised access to children in an educational setting (Sec. 16-22A-3, as amended by H. 132, L. 2000, effective July 1, 2000).
“Chief executive officer” means the State Superintendent of Education; the superintendent of any public county or city school system; the President of the Alabama Institute for Deaf and Blind; the Executive Director of the Alabama School of Fine Arts; the Superintendent of the Department of Youth Services School District; the Executive Director of the Alabama High School of Mathematics and Science; the superintendent of any nonpublic school, or in the absence of a superintendent, the headmaster of any nonpublic school; and the head of any department or employer covered by the Alabama Child Protection Act of 1999 but not specifically enumerated in the law (Sec. 16-22A-3, as amended by H. 132, L. 2000, effective July 1, 2000).
“Child or children” means any person under the age of 19 years, or any youth who suffers from a disability rendering the youth a child for the purpose of receiving elementary and secondary education at public expense, notwithstanding their chronological age (Sec. 16-22A-3, as amended by H. 132, L. 2000, effective July 1, 2000).
“Criminal history background information check” means the review of any and all records containing any information collected and stored in the criminal record repository of the FBI, the Alabama Department of Public Safety, or any other repository of criminal history records, involving an arrest or conviction by a criminal justice agency, including, but not limited to, child abuse crime information as defined in the National Child Protection Act of 1993, conviction record information, fingerprint cards, correctional induction and release information, identifiable descriptions and notations of convictions; provided, however, dissemination of such information is not forbidden by order of any court of competent jurisdiction or by federal law. Criminal history background information does not include any analytical records or investigative reports that contain criminal intelligence information or criminal investigation information (Sec. 16-22A-3, as amended by H. 132, L. 2000, effective July 1, 2000).
“Current employee” means any person who is employed by a local employing board or nonpublic school who has or seeks to have unsupervised access to a child or children, in an educational setting and any person employed to serve an authorized employer as defined above, including those individuals that provide services to local employing boards or nonpublic schools, when the person so employed has unsupervised access to children in an educational environment (Sec. 16-22A-3, as amended by Act H. 132, L. 2000, effective July 1, 2000).
“Current employee under review” means any current employee whose professional certificate or employment status is under review based upon reasonable suspicion (Sec. 16-22A-3, as amended by H. 132, L. 2000, effective July 1, 2000).
“Educational environment or setting” means any building, structure, or location whether public or private property, or vehicle, utilized to or involved in the providing of education, training, instruction, or supervision to children or transportation in connection with such activity provided by a local board of education or nonpublic school (Sec. 16-22A-3, as amended by H. 132, L. 2000, effective July 1, 2000).
“Local employing board” means any public county or city school system that falls under the jurisdiction of the State Board of Education and the State Superintendent of Education, the Alabama Institute for Deaf and Blind, the Alabama School of Fine Arts, Department of Youth Services School District, the Alabama High School of Mathematics and Science, and any public educational employer covered by the Alabama Child Protection Act of 1999 but not specifically enumerated in the law (Sec. 16-22A-3, as amended by H. 132, L. 2000, effective July 1, 2000).
“Nonpublic school” means any nonpublic or private school, including parochial schools, not under the jurisdiction of the State Superintendent of Education and the State Board of Education, yet providing educational services to children. Parents engaged in the home schooling of their own children are specifically excluded from the Alabama Child Protection Act of 1999 (Sec. 16-22A-3, as amended by H. 132, L. 2000, effective July 1, 2000).
“Reasonable suspicion” means belief by a prudent person that reasonable articulable grounds exist to suspect that the employee's past or present behavior should be reviewed to determine if such behavior or conduct bears upon the individual's fitness to teach or have responsibility for the safety and well being of children (Sec. 16-22A-3, as amended by H. 132, L. 2000, effective July 1, 2000).
“Suitability criteria for employment” Any noncertified teacher in a nonpublic school or classified employee or applicant in a nonpublic school for employment who has not been convicted of a child abuse crime will be deemed suitable for employment (Sec. 16-22A-3, as amended by H. 132, L. 2000, effective July 1, 2000).
“Unsupervised access to a child or children” During the providing of education, training, instruction, supervision to children, or other employment-related activities or responsibilities, a person would have unaccompanied control, governance, or contact with a child or children (Sec. 16-22A-3, as amended by H. 132, L. 2000, effective July 1, 2000).
“Written consent” means a signed statement by the applicant or a current employee under review containing all of the following (Sec. 16-22A-3, as amended by H. 132, L. 2000, effective July 1, 2000):
The name, address, date of birth, race, gender, and social security number appearing on a valid identification document.
A statement that the applicant or current employee under review has not been convicted of a crime that bears upon the applicant's or employee's fitness to teach or to have responsibility for the safety and well-being of children, and if convicted of such a crime, a description of the crime and the particulars of the conviction.
Notice to the applicant or current employee under review, where reasonable suspicion exists regarding the current employee, that a background check is going to be requested.
Notice to the applicant or current employee under review who is the subject of the background check of the right to obtain a copy of the background check report, challenge the accuracy and completeness of any information in the report, and to obtain a prompt determination as to the validity of such challenge before a decision to retain or hire for employment is made by the employer.
Notice to the applicant or current employee under review that before a background check is made, the applicant may be denied unsupervised access to children or the opportunity to serve based upon the information contained in the criminal history background check or that employment or service or both may be restricted by the employing entity according to written policy.
Notice to the applicant that refusal to give written permission for a criminal history background check will result in the applicant not being hired.
Notice to the applicant or current employee under review that failure to reveal a prior conviction that would bear upon the individual's fitness to teach or have responsibility for the safety and well-being of children, or any other convictions, may cause the applicant, if later employed, to face dismissal, in accordance with existing applicable law, for falsifying the employment application information.
Notice to the applicant or current employee under review of his or her due process rights.
Notice to the applicant or current employee under review seeking employment or employed by a nonpublic school that the State Superintendent of Education will provide a suitability determination based upon the FBI criminal history information report and the criteria defined herein to the chief executive officer of the nonpublic school.
The following definitions apply to the background check mental health provisions under WHAT THE EMPLOYER MUST DO below:
“Criminal history background information” means any information collected and stored in the criminal record repository of the FBI reflecting the result of an arrest, detention, or initiation of a criminal proceeding by criminal justice agencies, including, but not limited to, arrest record information, fingerprint cards, correctional induction and release information, identifiable descriptions, and notations of arrests, detention, indictments, or other formal charges. The term does not include analytical records or investigative reports that contain criminal intelligence information or criminal investigation information (Sec. 22-50-90).
“Direct care provider” means a psychiatrist, medical doctor, psychologist, social worker, community service specialist, therapist, nurse, mental health worker, foster care provider, police officer, and any other employee or person who has direct contact with the clients and patients served by the Alabama Department of Mental Health and Mental Retardation pursuant to a contract with the department (Sec. 22-50-90).
WHAT THE EMPLOYER MUST DO
Background checks.-Alabama Child Protection Act of 1999.- Any person who wishes to initiate a request for a criminal history background check of a current employee must provide a written signed statement to the designated chief executive officer of an authorized employer containing the reasonable articulable grounds supporting a request and initiation of review (Sec. 16-22A-4, as added by Act 361 (H. 402), L. 1999).
A criminal history background information check must be conducted on all applicants seeking positions with, and on all current employees under review employed by any local employing board and any State Department of Education personnel who have unsupervised access to and provide education, training, instruction, or supervision for children in an educational setting (Sec. 16-22A-5(a), as added by Act 361 (H. 402), L. 1999).
A criminal history background information check must be conducted on all applicants seeking positions with, and on all current employees under review employed by any nonpublic school, who have unsupervised access to or who provide education, training, instruction, or supervision for children in an educational setting (Sec. 16-22A-5(b), as added by Act 361 (H. 402), L. 1999).
No institution listed in Sec. 16-22A-5(a) or (b) (above) may hire an individual who may have unsupervised access to a child without first obtaining a criminal history background information check, except on a temporary emergency basis. If this exception is used and a position must be filled by the employer due to exigent circumstances, an applicant may be placed on payroll until such time as the Department of Public Safety completes a background check on the employee (Sec. 16-22A-5(c), as added by Act 361 (H. 402), L. 1999).
Criminal history background information reports for public school applicants and employees must be sent to the State Department of Education, which will forward the report to the chief executive officer of the local employing board originating the request for the information within a reasonable time from the department's receipt of the report from the Alabama Bureau of Investigation. Any adverse employment action taken as a result of the report of the criminal history background check must be in accordance with all existing applicable law (Sec. 16-22A-5(d), as added by Act 361 (H. 402), L. 1999).
Nationwide criminal history background information reports for nonpublic school employees must be sent directly from the Department of Public Safety to the State Department of Education within a reasonable time from the receipt of the report from the Alabama Bureau of Investigation. Thereafter, the State Superintendent of Education will review the criminal history record information report and determine whether the applicant meets the suitability criteria for employment. The State Superintendent of Education will issue a suitability determination to the chief executive officer of the nonpublic school requesting the determination (Sec. 16-22A-5(e), as added by Act 361 (H. 402), L. 1999).
Mandatory criminal history background information checks must be performed by the Department of Public Safety upon request by any public entity authorized to make a request and must be forwarded to the requesting party in a standardized format. The Department of Public Safety will provide an Alabama Bureau of Investigation criminal history background check within a reasonable time of the receipt of such request. Criminal history background checks must be requested by the Department of Public Safety from the FBI within a reasonable time of receipt of such request (Sec. 16-22A-5(f), as added by Act 361 (H. 402), L. 1999).
The Department of Public Safety, upon receipt of the criminal history background information report from the FBI, must forward such report to the State Department of Education within a reasonable time of the receipt of the report by certified mail. A copy of any report from the Department of Public Safety or the FBI must be sent concurrently to the applicant or current employee under review by certified mail. The fee charged for mandatory criminal history background information checks may not exceed the statutory and regulatory amounts set under existing guidelines, nor may additional administrative fees of any kind, except for the cost of mailings, be charged that would increase the cost of the criminal history background information check. The applicant is responsible for the cost of the criminal history background information check of the applicant. If an employing entity requests a criminal history background information check for a current employee under review, the employer is responsible for the cost. When a noncertified job applicant is determined by the chief executive officer of the prospective employer to be financially unable to pay the costs of a criminal history background check, the prospective employer may pay the fee associated with the background check (Sec. 16-22A-5(g), as added by Act 361 (H. 402), L. 1999).
The following persons must obtain a signed and dated written consent to obtain criminal history background information checks for applicants and certain current employees who have unsupervised access to children in an educational setting as provided for in Sec. 16-22A-(5)(a) and (b) (above) (Sec. 16-22A-5(h), as added by Act 361 (H. 402), L. 1999):
Persons designated by the public local employing board.
Persons designated by the State Department of Education.
Persons designated by any other nonpublic school.
Refusal by an applicant or current employee under review to sign and date a consent to obtain a criminal history background information check and to provide two acceptable sets of fingerprints will result in the preclusion of employment or certification of an applicant, or the continued employment or certification in a position requiring unsupervised access to children, until such time as written permission has been given to the employer or appropriate chief executive officer to conduct the check (Sec. 16-22A-5(i), as added by Act 361 (H. 402), L. 1999).
No current employee under review may be subjected to a criminal history background information check for only political or personal reasons. A review of a current employee must be based upon reasonable suspicion (Sec. 16-22A-5(j)(1), as added by Act 361 (H. 402), L. 1999).
A current employee under review must be apprised of the reasons supporting a request for a criminal history background information check and must be provided the opportunity to supply additional information on his or her behalf to the employer. Any personnel action taken against the current employee under review must be in accordance with all applicable state and federal laws as well as any adopted applicable local policies or procedures (Sec. 16-22A-5(j)(2), as added by Act 361 (H. 402), L. 1999).
The State Department of Education, or authorized public education employing entities responsible for hiring employees who will have unsupervised access to children in an educational setting, must request through the State Department of Education, that the Department of Public Safety secure from the FBI a criminal history background information check on an applicant or a current employee under review (Sec. 16-22A-6(a), as added by Act 361 (H. 402), L. 1999).
Any nonpublic school in which an individual may have unsupervised access to children in an educational setting must through its duly authorized representative under guidelines established by the nonpublic school employer, request the Department of Public Safety secure a state criminal history background information check and a criminal history background information check from the FBI on an applicant or a current employee under review (Sec. 16-22A-6(b), as added by Act 361 (H. 402), L. 1999).
A request to the Department of Public Safety for a criminal history background information check must be accompanied by the following (Sec. 16-22A-6(c), as added by Act 361 (H. 402), L. 1999):
two complete functional sets of fingerprints, properly executed by a criminal justice agency or an individual properly trained in fingerprinting techniques.
In the case of public education employment, written consent from the applicant or current employee under review for the release of criminal history background information to a specifically designated representative of the State Department of Education authorized to make the request.
In the case of nonpublic school employment, written consent from the applicant or current employee under review for the release of criminal history background information to the State Superintendent of Education.
A nonrefundable fee to be paid by the applicant or educational entity requesting the criminal history background information check that conforms to the guidelines issued under the National Child Protection Act of 1993, and state law. The job applicant will not be required to pay the fee until the authorized employer is prepared to employ the applicant and request the criminal history background information check. An applicant for certification will be required to submit two complete acceptable sets of fingerprints and the cost of the criminal history background information check at the time the application for certification is submitted to the State Department of Education. Any fee paid for which a criminal history background information check is not performed will be refunded to the applicant or educational entity requesting the check, provided two sets of acceptable fingerprints have been provided to the State Department of Education.
An applicant for public employment or current public employee under review with the State Department of Education or local employing board, who has or will have unsupervised access to a child or children, in an educational setting, must, upon request, submit the following items to the State Department of Education (Sec. 16-22A-7(a), as added by Act 361 (H. 402), L. 1999):
Two functional acceptable fingerprint cards, bearing the fingerprints of the individual, properly executed by a criminal justice agency or individual properly trained in fingerprinting techniques.
Written consent authorizing the release of any criminal history background information to the State Department of Education and local employing board.
A nonrefundable fee in the amount and manner specified by the Department of Public Safety. Any fee required in conjunction with a criminal history background information check of a current employee under review must be paid by the requesting employing entity.
An applicant for nonpublic employment or current nonpublic employee under review, who has or will have unsupervised access to a child or children, in an educational setting, must, upon request, submit the following items to the chief executive officer of the nonpublic school, who will forward such information to the Department of Public Safety (Sec. 16-22A-7(b), as added by Act 361 (H. 402), L. 1999):
Two functional acceptable fingerprint cards, bearing the fingerprints of the individual, properly executed by a criminal justice agency or individual properly trained in fingerprinting techniques.
Written consent authorizing the release of any criminal history background information to the State Superintendent of Education.
Acknowledgment that the applicant or current employee under review, seeking employment or employed by a nonpublic school, received notice that the State Superintendent of Education will provide a suitability determination based upon the FBI criminal history information report and the criteria defined herein to the chief executive officer of the nonpublic school.
A nonrefundable fee in the amount and manner specified by the Department of Public Safety. Any fee required in conjunction with a criminal history background information check of a current employee under review must be paid by the requesting employing entity.
The State Department of Education, local board of education, or other authorized public educational employer, may only request a criminal history background information check on any current employee under review having unsupervised access to a child or children in an educational setting, through the chief executive officer (Sec. 16-22A-7(c), as added by Act 361 (H. 402), L. 1999).
The nonpublic school employer may only request a criminal history background information check on any current employee under review having unsupervised access to a child or children in an educational setting through the chief executive officer of the nonpublic school employer (Sec. 16-22A-7(d), as added by Act 361 (H. 402), L. 1999).
The Department of Public Safety and the State Department of Education must cooperatively schedule sufficient training throughout the state to train all local superintendents of education or their duly appointed representatives in proper fingerprinting techniques (Sec. 16-22A-8(a), as added by Act 361 (H. 402), L. 1999).
The chief executive officers of nonpublic schools must arrange with the Department of Public Safety for sufficient training in proper fingerprinting techniques of their superintendent, headmaster, or other duly appointed representatives (Sec. 16-22A-8(b), as added by Act 361 (H. 402), L. 1999).
The Department of Public Safety is responsible for notifying the State Superintendent of Education when and where training sessions will be held. The State Superintendent of Education is responsible for notifying the local superintendents (Sec. 16-22A-8(c), as added by Act 361 (H. 402), L. 1999).
Nonpublic schools required or desiring to participate in the training sessions will be responsible for contacting the Department of Public Safety for information concerning dates, times, and cost of training (Sec. 16-22A-8(d), as added by Act 361 (H. 402), L. 1999).
Nonpublic school employers required to submit fingerprint cards under the Alabama Child Protection Act of 1999 are responsible for properly training their own representatives and ensuring the implementation of the law (Sec. 16-22A-8(f), as added by Act 361 (H. 402), L. 1999).
The Department of Public Safety may charge a reasonable fee for the training on proper fingerprinting techniques, if the fee is standard and equal for all participants in the program (Sec. 16-22A-8(g), as added by Act 361 (H. 402), L. 1999).
The Department of Public Safety must furnish standard fingerprint cards to the State Department of Education, local employing boards, and upon request, to nonpublic schools to be used only by personnel who have been trained in fingerprinting techniques (Sec. 16-22A-8(h), as added by Act 361 (H. 402), L. 1999).
Local boards of education and other public educational entities required to obtain criminal history background information checks under the Alabama Child Protection Act of 1999 must collect and forward to the State Department of Education two complete acceptable sets of fingerprints, written consent, and nonrefundable fee, when applicable, from applicants or current employees under review who have or seek to have unsupervised access to a child or children (Sec. 16-22A-9(a), as added by Act 361 (H. 402), L. 1999).
Nonpublic school employers shall voluntarily collect and forward two complete acceptable sets of fingerprints, written consent, and nonrefundable fee, when applicable, from applicants or current employees under review who have or seek to have unsupervised access to a child or children to the Department of Public Safety to request a criminal history background information check (Sec. 16-22A-9(b), as added by Act 361 (H. 402), L. 1999).
When a local employing board sends the items listed in Sec. 16-22A-99(a) (above) to the State Department of Education, the State Department of Education must record receipt of the items and forward them to the Department of Public Safety to request a criminal history background information check (Sec. 16-22A-9(c), as added by Act 361 (H. 402), L. 1999).
When a nonpublic school collects the items listed in Sec. 16-22A-9(b) (above) to forward to the Department of Public Safety, the superintendent, headmaster, or other designated representative of the nonpublic school is responsible for recording receipt of the items and forwarding them to the Department of Public Safety to request a criminal history background information check (Sec. 16-22A-9(d), as added by Act 361 (H. 402), L. 1999).
The Department of Public Safety will forward criminal history background information of public applicants or employees to the office of the State Superintendent of Education (Sec. 16-22A-9(e), as added by Act 361 (H. 402), L. 1999).
Upon receipt of information requested by any public school, the State Department of Education must take reasonable steps to verify any criminal history for which there was no disposition reported prior to forwarding such information to the chief executive officer for the requesting public local employing board. Any criminal history that would bear on the individual's fitness to teach or have responsibility for the safety and well-being of children or both must be forwarded to the chief executive officer by certified mail. A copy of any report forwarded by the State Department of Education to a requesting educational entity must be concurrently forwarded to the applicant or current employee under review by certified mail (Sec. 16-22A-9(f), as added by Act 361 (H. 402), L. 1999).
The Department of Public Safety will forward state criminal history background information of nonpublic applicants or employees to State Superintendent of Education (Sec. 16-22A-9(g), as added by Act 361 (H. 402), L. 1999).
Upon receipt of the criminal history record information report from the FBI, the State Superintendent of Education will review the criminal history record information and determine whether the nonpublic applicant for employment meets the suitability criteria for employment. The State Superintendent of Education will issue a suitability determination to the chief executive officer of the nonpublic school requesting the determination (Sec. 16-22A-9(h), as added by Act 361 (H. 402), L. 1999).
All reports of criminal history background information received by the State Department of Education, any local superintendent of a city or county board of education, or any nonpublic school from the Department of Public Safety are confidential and must be marked as such and not further disclosed or made available for public inspection (Sec. 16-22A-10(a), as added by Act 361 (H. 402), L. 1999).
All criminal history background information reports are specifically excluded from any requirement of public disclosure as a public record (Sec. 16-22A-10(b), as added by Act 361 (H. 402), L. 1999).
Transmittal of any criminal history background information at any time must be accomplished in a nontransparent package, sealed, and marked confidential with instructions to be opened only by the person named on the package and authorized to receive the information pursuant to the Alabama Child Protection Act of 1999 (Sec. 16-22A-10(c), as added by Act 361 (H. 402), L. 1999).
Without additional public disclosure, the following actions will not be construed to violate this section (Sec. 16-22A-10(d), as added by Act 361 (H. 402), L. 1999):
Showing the report of criminal history background information to the applicant or current employee under review to give him or her the opportunity to challenge the report.
Releasing the report to a court of competent jurisdiction in the event of litigation brought by the applicant or current employee under review.
Use of the information in preparation, investigation, and presentation during administrative proceedings involving revocation of certificate brought by the State Superintendent of Education, termination by the employer, or restriction on unsupervised access to a child in an educational setting.
Any person having access to criminal history background information check reports and releasing the same as provided in the Alabama Child Protection Act of 1999 must maintain a register consistent with the National Child Protection Act of 1993 (Sec. 16-22A-10(e), as added by Act 361 (H. 402), L. 1999).
Any person convicted of any of the following actions under the Alabama Child Protection Act of 1999 will be guilty of a Class A misdemeanor (Sec. 16-22A-12, as added by Act 361 (H. 402), L. 1999):
violating the confidentiality of records provisions.
violating lawfully adopted policies that are provided for in the Alabama Child Protection Act of 1999.
knowingly, willfully, and intentionally making or transmitting a false report or complaint against a current employee or prospective employee without reason to believe the accuracy of such report or complaint.
Any person who knowingly submits false information concerning past convictions on an application for employment or other form required for disclosure of criminal convictions may be subject to loss of employment under provisions for termination according to the provisions of applicable existing statutes and to the loss of any certificate issued by the State Superintendent of Education under the Alabama Child Protection Act of 1999 (Sec. 16-22A-12, as added by Act 361 (H. 402), L. 1999).
A qualified educational entity will not be liable in any action for damages solely for failure to conduct a criminal background check on an educational employee, nor will the state or political subdivision thereof, nor any agency, officer, or employee thereof, be liable in any action for damages for the failure of a qualified entity to take action adverse to an individual who was the subject of a criminal history background information check. Neither the State Superintendent of Education, the State Department of Education, nor any agent thereof will be liable in civil court in an action for damages arising out of any suitability determination (Sec. 16-22A-13, as added by Act 361 (H. 402), L. 1999).
If non-public school wishes not to do the fingerprinting procedure of their applicants, they shall not be required to do so, then the applicant to the non-public school shall request a criminal background check through the local board of education in the city or county in which such non-public school is located and the request shall be processed in the same manner as other applicants under the Alabama Child Protection Act of 1999 (Sec. 16-22A-14, as added by Act 361 (H. 402), L. 1999).
The Alabama Child Protection Act of 1999 does not cover any pastor, priest, rabbi, clergyman, or other church official, except when acting in capacity of a full time regular classroom teacher (Sec. 16-22A-15, as added by Act 361 (H. 402), L. 1999).
Child/adult care facilities.- On November 1, 2000, every employer, child care facility, adult care facility, the Department of Human Resources, and child placing agency must ask the Department of Public Safety to conduct a criminal history background information check for the following (Sec. 3(a), S. 273, L. 2000, effective November 1, 2000):
An employment applicant, employee or volunteer of an employer, child care facility, adult care facility or child placing agency.
A current foster parent for a child or adult or adult household member of a foster family or applicant and an adult household member of a foster family seeking approval to operate as a foster parent or foster family home for a child placing agency or the Department of Human Resources. No criminal history background information check will be conducted under this act on a current foster parent or household member of a foster family if an FBI and Alabama Department of Public Safety criminal history background information check has already been conducted under other law. Subsequent convictions of foster parents, or convictions entered into the system subsequent to the initial report, must be sent by the Department of Public Safety to the Department of Human Resources as provided in this act.
An applicant in a position in the Department of Human Resources that requires unsupervised access to children, the elderly, or individuals with disabilities as one of the essential functions of the job. No current employee of the department will be subjected to a criminal history background information check except upon reasonable suspicion. Checks will be required for prospective and current personnel under contract with the department or working with another entity under contract with the department, students, mentors, and volunteers in positions requiring unsupervised access to children, the elderly, or persons with disabilities as one of the essential functions of the job. The department must pay any fees related to any required checks.
A current licensee or applicant for a license through the Department of Human Resources to operate a child care or adult care facility.
An employer, child care facility, adult care facility, the Department of Human Resources, or a child placing agency may only request a criminal history background information check by its CEO, or his or her designee authorized in writing and notarized, and law enforcement must render assistance (Sec. 3(b), S. 273, L. 2000, effective November 1, 2000).
Every employee, volunteer or applicant for employment or a volunteer position, licensee, or applicant for a license to the Department of Human Resources to operate a child care or adult care facility must submit two sets of fingerprints and sign a written consent to obtain the criminal history background information. Fingerprints will not be required when a disability prevents a person from being fingerprinted. In such cases, a written consent to obtain available criminal history background information by name only must be obtained. No one who fails or refuses to give written consent or submit fingerprints necessary to obtain criminal history background information may be employed, allowed to perform volunteer or other work, approved or issued a license, or allowed to retain a license or approval by the department, an employer, child care facility, adult care facility or child placing agency (Sec. 3(c), S. 273, L. 2000, effective November 1, 2000).
Child care facilities or adult care facilities exempt from Department of Human Resources licensing are not required to comply with this act, but may voluntarily collect and forward two complete acceptable sets of fingerprints, the written consent, and nonrefundable fee from applicants or employees to the Department of Public Safety to request a criminal history background information check which will be processed pursuant to this act. Provided, however, if a license-exempt child care facility operated as part of a church ministry or religious school does not choose to comply with this act on a voluntary basis, then the employee or prospective employee of the child care facility must request a criminal history background check, and the request must be processed in the same manner as for other employees or applicants under this act. The Department of Human Resources must, prior to the disbursement of any subsidized child care funds, require all employees and applicants of legally operating child care facilities to submit verification of the application for a criminal history background check and the results thereof when obtained. Upon reasonable suspicion that the individual has a criminal conviction or has not had a criminal history background check conducted, the Department of Human Resources has the right to require employees of license-exempt facilities to submit each application for a check and the results thereof when obtained (Sec. 3(d), S. 273, L. 2000, effective November 1, 2000).
Every employer, child care facility, adult care facility, the Department of Human Resources, and child placing agency required to obtain a criminal history background information check pursuant to this act must obtain, prior to or upon the date of employment, or issuance of a license or approval or renewal thereof, and maintain in the agency or personnel file, a request with written consent for the criminal history background information check and a statement signed by the applicant, volunteer or employee indicating whether he or she has ever been convicted of a crime, and if so, fully disclosing all convictions. The statement must include a notice and questionnaire the same as or similar to the following (Sec. 4(a), S. 273, L. 2000, effective November 1, 2000):
“MANDATORY CRIMINAL HISTORY CHECK NOTICE: Alabama law requires that a criminal history background information check be conducted on all persons who hold a license or work in a Department of Human Resources licensed child care or adult care facility, a foster or adoptive home approved by the Department of Human Resources, or a licensed child placing agency, including all officers and agents of the entity. You are required to provide full, complete, and accurate information on your criminal conviction history upon application for a license or employment. This information shall be used to determine your suitability to provide care to children, the elderly, or disabled individuals. Unless a criminal history background information check report and suitability determination have previously been obtained, you must complete a written request and consent for a criminal history background information check with fingerprints at the time of application for employment. Refusal to complete these documents or providing false information shall result in refusal of employment, approval, or licensure. The term conviction includes a determination of guilt by a trial, by a plea of guilty, or a plea of nolo contendere. You are required to notify your employer, licensing agency, or entity where you are performing volunteer work of any criminal conviction occurring subsequent to the date of completion of this notice. Any individual determined to have submitted false information shall be referred to the district attorney or law enforcement for investigation and possible prosecution. An individual who intentionally falsifies or provides any misleading information on the statement is guilty of a Class A misdemeanor, punishable by a fine of not more than two thousand dollars ($2,000) and imprisonment for not more than one year.
Convictions for any of the following crimes shall make an individual unsuitable for employment, volunteer work, approval, or licensure:
Murder, manslaughter, or criminally negligent homicide.
A sex crime.
A crime that involves the physical or mental injury or maltreatment of a child, the elderly, or an individual with disabilities.
A crime committed against a child.
A crime involving the sale or distribution of a controlled substance.
A sex crime includes the following: (a) enticing a child to enter a vehicle, room, house, office, or any other space for immoral purposes, as proscribed by Section 13A-6-69 of the Code of Alabama 1975; (b) incest, when the offender is an adult and the victim is a minor, as proscribed by Section l3A-l3-3 of the Code of Alabama 1975; (c) kidnapping of a minor, except by a parent, in the first or second degree, as proscribed by Section 13A-6-43 or Section 13A-6-44 of the Code of Alabama 1975; (d) promoting prostitution in the first or second degree, as proscribed by Section 13A-12-111 or Section 13A-12-112 of the Code of Alabama 1975; (e) rape in the first or second degree, as proscribed by Section 13A-6-61 or Section 13A-6-62 of the Code of Alabama 1975; (f) sexual misconduct, as proscribed by Section 13A-6-65 of the Code of Alabama 1975; (g) sexual torture, as proscribed by Section 13A-6-65 of the Code of Alabama 1975; (h) sexual abuse in the first or second degree, as proscribed by Section l3A-6-66 or Section 13A-6-67 of the Code of Alabama 1975; (i) sodomy in the first or second degree, as proscribed by Section 13A-6-63 or Section 13A-6-64 of the Code of Alabama 1975; (j) soliciting a child by computer for the purposes of committing a sexual act and transmittal of obscene material to a child by computer as proscribed by Sections 13A-6-110 and 13A-6-111 of the Code of Alabama 1975; (k) violation of the Alabama Child pornography Act, as proscribed by Section 13A-12-191, 13A-12-192, 13A-12-l96, or 13A-12-197 of the Code of Alabama 1975; (l) any solicitation, attempt, or conspiracy to commit any of the offenses listed in items (a) to (k), inclusive; (m) a crime listed in the Community Notification Act, Chapter 20 of Title 15 of the Code of Alabama 1975.
Conviction for a crime listed in the federal Adoption and Safe Families Act as prohibiting a person from being a foster parent or adoptive parent shall be deemed to make the convicted person unsuitable for employment, volunteer work, approval, or licensure as a foster parent or adoptive parent.
Conviction for a violation or attempted violation of an offense committed outside the State of Alabama or under federal law is a sex crime or any other crime listed in this notice if the offense would be a crime listed in this notice in Alabama.
CRIMINAL HISTORY STATEMENT
“Have you ever had a suitability determination made by the Department of Human Resources in connection with a previous criminal history information background check? Yes ( ) No ( ).
“Have you ever been convicted of a crime? Yes ( ) No ( ). If yes, state the date, crime, location, punishment imposed, and whether the victim was a child or an elderly or disabled individual.
“Date
“Signature”
An individual who fails or refuses to provide a statement may not be employed, allowed to work or volunteer, or issued a license or approval as defined in this act. Upon receipt of a signed criminal history statement that does not indicate conviction for a crime prohibiting employment under the suitability criteria, an employer, including the Department of Human Resources, may employ an applicant or allow a volunteer or contract provider to work provisionally pending receipt of a suitability determination from the Department of Human Resources (Sec. 4(b), S. 273, L. 2000, effective November 1, 2000).
No later than five business days after employment or a reasonable time after completion of application for a license or approval, an employer, the Department of Human Resources, or child placing agency must mail or deliver a request for a criminal history background information check to the Department of Public Safety accompanied by the following (Sec. 4(c), S. 273, L. 2000, effective November 1, 2000):
two complete sets of fingerprints;
written consent from the applicant, employee or volunteer for the release of the criminal history background information to the Department of Human Resources;
the fee.
Upon receipt of a suitability determination from the Department of Human Resources that a person or entity is suitable for employment, volunteer work, licensure, or approval based on the criminal history background information check, an employer, a child care facility, adult care facility, a child placing agency, or the department may make its own determination of employment, licensure, or approval. Upon receipt of a determination from the department that an individual is unsuitable for employment, licensure, approval, or volunteer work, an employer, the child care facility, adult care facility, child placing agency, or department must terminate the individual from employment or volunteer work or must not employ or use the individual. Termination of employment may be delayed by the employer to allow the individual to challenge either the accuracy or completeness of the criminal history information background report or the suitability determination. The department or child placing agency must suspend or revoke a license or approval or deny a license or approval application to an individual receiving an unsuitability determination. As an alternative to termination, the department may transfer a permanent Merit System employee to an available position for which the employee is qualified where unsupervised access to children, the elderly, or persons with disabilities is not an essential function of the job (Sec. 4(d), S. 273, L. 2000, effective November 1, 2000).
If a review of a criminal history background information check or other information received reveals that the person has submitted false information, the employer, child care facility, adult care facility, child placing agency, or Department of Human Resources must terminate the employee or volunteer. The department or child placing agency must revoke the approval or license of a person or entity when the person or entity submits false information in a review of criminal history background information check or other information. The department must be notified of the false information and must refer the case to an appropriate law enforcement agency or district attorney for investigation and prosecution (Sec. 4(e), S. 273, L. 2000, effective November 1, 2000).
Only one criminal history background information check will be required on an individual regardless of subsequent changes in employment or licensing or approval status. Subsequent checks may be conducted by the employer or licensing or approval entity. The licensing or approval entity must pay the cost for subsequent checks. If the statement signed by the applicant or employee states that a criminal history background information check has been performed and suitability determination issued on the individual, the employer or licensing agency may request at the time of application only a suitability determination from the Department of Human Resources on the check previously performed, within five business days of employment, or completion of license or approval application, submitting the same kind of information and consent for the request for suitability determination as required by the written consent for a criminal history background information check (Sec. 4(f), S. 273, L. 2000, effective November 1, 2000).
Upon being notified that an individual has already had a criminal history background information check performed by the Department of Education pursuant to the Alabama Child Protection Act (see above), the Department of Human Resources must request and the Department of Education must provide criminal history background reports and reports on subsequent convictions, or convictions entered into the system subsequent to the initial report, to the Department of Human Resources without the payment of an additional fee, provided there are no violations of federal laws (Sec. 4(g), S. 273, L. 2000, effective November 1, 2000).
An applicant, licensee, volunteer, or employee, upon request, must submit the following items (Sec. 5(a), S. 273, L. 2000, effective November 1, 2000):
Two functional, acceptable fingerprint cards, bearing the fingerprints of the individual, properly executed by a law enforcement agency or individual properly trained in fingerprinting techniques.
Written consent authorizing the release of any criminal history background information to the Department of Human Resources.
A written statement signed by the applicant, volunteer, or employee indicating whether he or she has ever been convicted of a crime, and if so, fully disclosing all convictions. The statement must include a notice and questionnaire in the form required in Sec. 4(a), S. 273, L. 2000 (above).
The fee of an applicant.
An applicant, licensee, volunteer, or employee must notify the prospective or current employer, licensing agency, or entity for whom volunteer work is being performed of any criminal convictions occurring subsequent to the date of completion of the notice in Sec. 4, S. 273, L. 2000 (above) (Sec. 5(b), S. 273, L. 2000, effective November 1, 2000).
An applicant for employment is responsible for the cost of the criminal history background information check. An applicant will not be required to pay the fee until the prospective employing entity is prepared to consider the applicant and request a check. The CEO of the prospective employing entity may pay the fee of an applicant (Sec. 6(c), S. 273, L. 2000, effective November 1, 2000).
An applicant for a license or approval must pay the fee for the criminal history background information check at the time the application for the license is submitted; except as provided herein, the Department of Human Resources may pay the fee for adult and child foster care applicants and child adoption applicants (Sec. 6(e), S. 273, L. 2000, effective November 1, 2000).
For an employing entity that requests a criminal history background information check on a current employee, the employing entity must pay the fee for the check. The employee may be required to pay the fee or a portion of the fee as long as there is no violation of federal minimum wage requirements (Sec. 6(f), S. 273, L. 2000, effective November 1, 2000).
Criminal history background information checks must be performed by the Department of Public Safety upon request by an employer, child care facility, adult care facility, or child placing agency authorized to make a request, or the Department of Human Resources. The Department of Public Safety must provide a criminal history background check within a reasonable time of the receipt of the request. National criminal history background checks will be requested by the Department of Public Safety from the FBI within a reasonable time of the request. The Department of Public Safety, upon receipt of the criminal history background report from the FBI, will forward the report to the Department of Human Resources within a reasonable period (Sec. 7(a), S. 273, L. 2000, effective November 1, 2000).
Criminal history background information reports will be sent directly from the Department of Public Safety to the Department of Human Resources within a reasonable time from the receipt of the report from the FBI. A copy of a criminal history report from the Department of Public Safety and FBI will be sent by the Department of Human Resources to the applicant or employee by certified mail or personal service. The Department of Human Resources will review the criminal history record information report and determine whether the applicant, employee, or volunteer meets the suitability criteria for employment or licensure based on the criminal history background information check. The Department of Human Resources will issue a written suitability determination to the applicant or employee and to the licensing entity or CEO of the child care facility or adult care facility requesting the criminal history background information check. The Department of Public Safety will notify the Department of Human Resources of a subsequent conviction, or convictions entered into the automated system subsequent to the initial report, for a crime committed on an individual for whom a criminal history background information report has been sent. The Department of Human Resources must include the conviction in an amended or subsequent suitability determination (Sec. 7(b), S. 273, L. 2000, effective November 1, 2000).
A person may contest the accuracy or completeness of the Alabama criminal history background information check pertaining to him or her with the Department of Public Safety according to procedures established by that agency. The person or his or her legal counsel may review at the Department of Human Resources a copy of the Alabama criminal history background information report from the Department of Public Safety. If, upon review by the Department of Public Safety, the information is determined to be incorrect or incomplete, the information must be corrected, and the Department of Human Resources will be provided with the corrected information (Sec. 7(c), S. 273, L. 2000, effective November 1, 2000).
The Department of Human Resources will issue a suitability determination and maintain a confidential file on individuals for whom a criminal history background information report or report updates have been received. The department may issue a suitability determination based upon the criminal history report on file without the requirement of a new criminal history background information check. If no report or if only an incomplete criminal history report can be located in the files of the department, the individual will be required to submit to a new check (Sec. 7(d), S. 273, L. 2000, effective November 1, 2000).
Within 30 days of the date of notification, an individual determined unsuitable for approval, licensure, employment, or volunteer work by the Department of Human Resources based upon a disqualifying conviction may request in writing reversal of the determination if the conviction is not for a sex crime or a crime committed against a child, an elderly individual, or an individual with disabilities. An individual with a conviction excluded by federal law from being approved as a foster or adoptive parent, as any other child care or adult care provider, or volunteer may not be considered for reinstatement. In the case of a felony conviction, 10 years must have lapsed since the sentence was served or the probation or parole ended, whichever is later, with no subsequent conviction. In the case of a misdemeanor conviction, five years must have lapsed since the sentence was served, or the probation or parole ended, whichever is later, with no subsequent conviction. The individual must affirmatively demonstrate to the department successful rehabilitation by clear and convincing evidence (Sec. 7(e), S. 273, L. 2000, effective November 1, 2000).
All reports of criminal history background information received by the Department of Human Resources from the Department of Public Safety are confidential and must be marked confidential with no further disclosure and must not be made available for public inspection (Sec. 8(a), S. 273, L. 2000, effective November 1, 2000).
All criminal history background information reports are excluded from any requirement of public disclosure as a public record (Sec. 8(b), S. 273, L. 2000, effective November 1, 2000).
A person having access to criminal history background information reports and releasing the reports pursuant to this act must maintain a register consistent with the National Child Protection Act of 1993 (Sec. 8(d), S. 273, L. 2000, effective November 1, 2000).
A person convicted of the following actions under this act will be guilty of a Class A misdemeanor (Sec. 9(a), S. 273, L. 2000, effective November 1, 2000):
Violating the confidentiality of records.
Violating lawfully adopted policies pursuant to this act.
Knowingly, willfully, and intentionally making or transmitting a false or misleading report or information concerning past convictions as required under this act.
Knowingly, willfully, and intentionally failing to report subsequent convictions as required by this act.
A person who knowingly submits false information concerning past convictions on an application for employment or other form required for disclosure of criminal convictions may be subject to loss of employment and to the loss of any license issued by the Department of Human Resources or child placing agency (Sec. 9(b), S. 273, L. 2000, effective November 1, 2000).
Sex offenders.- Unless otherwise exempted by law, no adult criminal sex offender may accept employment within 2,000 feet of the property on which any school or child care facility is located (Sec. 15-20-26(a), as amended by Act 728 (S. 183), L. 2000, effective August 1, 2000).
Mental health workers.- With the approval of the Attorney General of the United States, the Alabama Department of Mental Health and Mental Retardation may use the Department of Public Safety to secure criminal history background information through the FBI on persons with whom the Department of Mental Health and Mental Retardation employs or contracts with, or both, to be direct care providers to clients and patients. Any request by the Department of Mental Health and Mental Retardation for the information on a direct care provider applicant must include a complete set of fingerprints for each applicant and must comply with the applicable administrative rules and procedures of the Department of Public Safety (Sec. 22-50-90).
Campus police departments of colleges/universities offering medical, nursing or health care education.- The police department of any college or university in Alabama that offers medical, nursing and health care education, or that operates a hospital, including, but not limited to, the University of Alabama in Birmingham and the University of South Alabama, and excluding the University of Alabama in Tuscaloosa may request from the Alabama Criminal Justice Information Center a criminal background check on any person who applies for employment with the college or university, and may charge a background search fee of $25 from each applicant for each search conducted on the applicant (Sec. 41-9-594(d), as amended by H. 485, L. 2000, effective August 1, 2000).
Nuclear facilities.- Any person, firm or corporation that operates, constructs or maintains a nuclear-powered electric generating facility within the state licensed by the United States Nuclear Regulatory Commission, except an agency of the United States Government, must conduct an inquiry into the criminal history record of any person employed or who has made application for employment at such facility (Sec. 22-14-30).
The criminal history record inquiry must be used to establish the suitability of such person to work within or have access to any vital area of such facility. “Vital areas” are defined by the United States Nuclear Regulatory Commission or any other federal agency having authority to license or regulate nuclear powered electric generating facilities (Sec. 22-14-30).
Any person, firm or corporation referred to in Sec. 22-14-30 above must submit to the Alabama Department of Public Safety two sets of classifiable fingerprints of each person for whom a criminal history record inquiry is required. The department must search its criminal history files or the criminal history files of any other state agency to which it has access and return the results of its records search to the submitting employer. The director will set and collect a reasonable fee for such service (Sec. 22-14-31).
The Department of Public Safety must submit one set of the classifiable fingerprint cards of such employee to the identification division of the FBI with a request that the bureau search its criminal history files to ascertain if such employee has a criminal history and furnish any identifiable information on such employee to the department (Sec. 22-14-32).
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