Preemployment Inquiries Law Summaries
Georgia, Preemployment Inquiries Law Summaries
There are several laws in Georgia pertaining to criminal background checks in employment. Public school personnel are required to be fingerprinted and have a criminal background check prior to employment (Title 20, Ch. 2, Art. 2).
Provisions pertaining to the licensing of personal home care facilities and employment of the personnel at such facilities is at Title 31, Ch. 7, Art. 11. Prior to hiring an employment applicant, nursing homes are required to request a criminal record check from the Georgia Crime Information Center (Title 31, Ch. 7, Art. 14). Also, criminal records checks are required for day care center owners, directors and employees (Title 49, Ch. 5, Art. 3).
Private and public employers may require that new or current employees who supervise children submit to a criminal records check (Title 49, Ch. 5, Art. 5).
Provisions pertaining to the licensing of private detectives and security businesses and the employment of personnel at such businesses are located at Title 43, Ch. 38. The law relating to the accessibility and disclosure of criminal records checks is located at Title 35, Ch. 3.
For the full text of these laws, see Employment Practices Guide ¶11-23,600.01 et seq.
Georgia's job reference liability law is located at Title 34, Chapter 1. The full text of this law is available at Wages-Hours ¶11-64,051 .
References are to the Official Code of Georgia Annotated.
DEFINITIONS
For purposes of the job reference liability law, “employee” means any person who is employed by an employer (Sec. 34-1-4(a)).
For purposes of the job reference liability law, “employer” means any individual engaged in a business, corporation, S corporation, limited liability corporation, partnership, limited liability partnership, sole proprietorship, association, or government entity (Sec. 34-1-4(a)).
“GBI” means Georgia Bureau of Investigation.
“GCIC” means Georgia Crime Information Center.
WHAT THE EMPLOYER MUST DO
Background checks.-School employees.- No local governing board may employ any person as a teacher who has been discharged from the U.S. armed forces with a dishonorable discharge as a result of desertion or any person who has fled or removed himself or herself from the U.S. for the purpose of avoiding or evading military service in the U.S. armed forces, excluding those who have been fully pardoned (Sec. 20-2-211(c), as amended by H. 1187, L. 1999, effective July 1, 2000).
All personnel employed by a local unit of administration after July 1, 2000, whether or not such personnel hold certificates from the Professional Standards Commission, must be fingerprinted and have a criminal record check made. The local unit of administration may employ a person holding such a certificate under a provisional or temporary contract for a maximum of 200 days and may employ a person who does not hold such a certificate for a maximum of 200 days, in order to allow for the receipt of the results of the criminal record check. Teachers, principals, and other certificated personnel whose employment in a local unit of administration is renewed after July 1, 2000, must have a criminal record check made upon any certificate renewal application to the Professional Standards Commission (Sec. 20-2-211(e)(1), as amended by H. 1187, L. 1999, effective July 1, 2000).
Fingerprints must be in such form and of such quality as are acceptable for submission to the National Crime Information Center. It is the duty of each law enforcement agency in Georgia to fingerprint those persons required to be fingerprinted by this subsection (Sec. 20-2-211(e)(2), as amended by H. 1187, L. 1999, effective July 1, 2000).
At the discretion of local units of administration, fees required for a criminal record check by the GCIC, the National Crime Information Center, the FBI, or the U.S. Department of Justice must be paid by the local unit of administration or by the individual seeking employment or making application to the Professional Standards Commission (Sec. 20-2-211(e)(3), as amended by H. 1187, L. 1999, effective July 1, 2000).
Information provided by the GCIC or the National Crime Information Center may be used only for the purposes allowed by Sec. 35-3-35 or by applicable federal laws, rules, or regulations (Sec. 20-2-211(e), as amended by H. 1187, L. 1999, effective July 1, 2000).
Personal care homes.- Accompanying any application for a new license for a personal care home where residents reside, the applicant must furnish to the Department of Human Resources a records check application and a preliminary records check application for the director (chief administrative or executive officer or manager) of such facility. “Employee” is defined as any person, other than a director, utilized by a personal care home to provide personal services to any resident on behalf of the personal care home or to perform at any facilities of the personal care home any duties that involve personal contact between that person and any paying resident of the home. In lieu of such records check applications, the applicant may submit evidence, satisfactory to the department, that within the immediately preceding 12 months the director received a satisfactory fingerprint records check determination. The department will contract either with GCIC or other appropriate law enforcement agencies that have access to GCIC information to perform itself or have those agencies perform for the department a preliminary records check for each records check application and preliminary records check application submitted thereto by the department; and the department will make a written determination based upon that records check (Secs. 31-7-250 and 31-7-252, as amended by H. 1413, L. 2001, effective July 1, 2002).
After being furnished the required records check applications under Sec. 31-7-252 above, the department must notify in writing the license applicant as to each person for whom an application was received regarding whether the department's determination as to that person's preliminary records check was satisfactory or unsatisfactory. If the preliminary records check determination was satisfactory as to the director of the facility, that applicant may be issued a temporary license for that facility if the applicant otherwise qualifies for a license under Article 1 of this chapter. If the determination was unsatisfactory as to the director of the facility, the applicant must designate another director for that facility after receiving notification of the determination and proceed under Sec. 31-7-252 above and this section to obtain a preliminary records check for that newly designated director. The applicant may not be issued a temporary license for that facility until the department has determined under Sec. 31-7-252 above and this section that the director has a satisfactory preliminary records check determination (Sec. 31-7-253, as amended by H. 1413, L. 2001, effective July 1, 2002).
After issuing a temporary license based upon a satisfactory preliminary records check determination of the director under Sec. 31-7-253 above, the department will transmit to the GCIC both sets of fingerprints and the records search fee from that director's records check application. Upon receipt thereof, the GCIC will promptly transmit one set of fingerprints to the FBI for a search of bureau records and an appropriate report and will retain the other set and promptly conduct a search of its records and records to which it has access. Within 75 days after receiving fingerprints acceptable to the GCIC, the application, and fee, the GCIC will notify the department in writing of any derogatory finding, including but not limited to any criminal record (see definition just below), of the fingerprint records check or if there is no such finding (Sec. 31-7-254, as amended by H. 1413, L. 2001, effective July 1, 2002).
“Criminal record” means any of the following (Sec. 31-7-250, as amended by H. 1413, L. 2001, effective July 1, 2002):
Conviction of a crime (aggravated assault; aggravated battery; rape; theft by taking; theft by deception; theft by conversion; forgery in the first and second degree; murder and felony murder; criminal attempt as it concerns attempted murder; robbery; armed robbery; a violation of Ch. 13 of Title 16, relating to controlled substances; battery; sexual assault against a person in custody; abuse, neglect, or exploitation of a disabled adult or elder person; or any other offense committed in another jurisdiction which, if committed in Georgia, would be deemed to be such a crime without regard to its designation elsewhere);
Arrest, charge, and sentencing for a crime where: (a) a plea of nolo contendere was entered to the charge; (b) first offender treatment without adjudication of guilt pursuant to the charge was granted; or (c) adjudication or sentence was otherwise withheld or not entered on the charge; or
Arrest and being charged for a crime if the charge is pending, unless the time for prosecuting such crime has expired.
After receiving a GCIC notification regarding a director's fingerprint records check under Sec. 31-7-254 above, the department will make a determination based thereon and notify in writing the license applicant as to whether that records check was satisfactory or unsatisfactory. If the fingerprint records check determination was satisfactory as to the director of the facility, that applicant may be issued a regular license for that facility. If the fingerprint records check determination was unsatisfactory as to the director of the facility, after receiving notification of that determination, that applicant will designate another director for such facility, for which director the applicant has not received or made an unsatisfactory preliminary or fingerprint records check determination, and proceed under the requirements of Sec. 31-7-252-31-7-254 above and this section to obtain a preliminary records check and fingerprint records check determination for the newly designated director. The applicant may not be issued a regular license for that facility until the director has a satisfactory fingerprint records check determination (Sec. 31-7-255, as amended by H. 1413, L. 2001, effective July 1, 2002).
Before a person may become a director of any facility that has received either a temporary or regular license, that facility will require that person to furnish to the department a preliminary records check application and a records check application and the department shall make a preliminary records check determination and send notice thereof to the facility and director prior to the director beginning work. If the preliminary records check is unsatisfactory, the facility must not hire the director. If the subsequent fingerprint records check determination is unsatisfactory, the facility must take such steps as are necessary so that such person is no longer the director of the facility (Sec. 31-7-259(a), as amended by H. 1413, L. 2001, effective July 1, 2002).
Before a person may become an employee of a facility, each potential employee of a facility shall request a criminal record check from a local law enforcement agency and submit the results of the criminal record check to the facility. The personal care home shall be authorized to rely on written information received from a local law enforcement agency, GCIC, or other official agency to determine whether the applicant for employment has a criminal record. A personal care home shall not employ a person with an unsatisfactory determination (Sec. 31-7-259(b), as amended by H. 1413, L. 2001, effective July 1, 2002).
In addition, where an applicant for employment at a personal care home has not been a Georgia resident for a period of three years preceding the date of application for employment, the personal care home shall attempt to obtain a criminal record check from the local law enforcement agency of the applicant's previous state of residence. If the local criminal record check from either the applicant's previous state of residence or Georgia indicates multistate offender status, the personal care home shall not employ the applicant until a determination is made as to whether the applicant has a criminal record. If the personal care home elects to determine the nature of the criminal activity, the personal care home shall transmit the preliminary records check application and the records check application on behalf of the potential employee to the department for processing through the GCIC. A personal care home shall not employ a person with an unsatisfactory determination (Sec. 31-7-259(c), as amended by H. 1413, L. 2001, effective July 1, 2002).
If the personal care home is unable to obtain a criminal record check from the local law enforcement agency of the applicant's previous state of residence, it shall transmit a records check application to the department, which shall process the application through the GCIC. A personal care home shall not employ a person with an unsatisfactory determination (Sec. 31-7-259(d), as amended by H. 1413, L. 2001, effective July 1, 2002).
The fee for a criminal records check under this section shall be no greater than the actual cost of processing the request, and shall be paid by the personal care home or by the applicant for employment. The Georgia law enforcement agency receiving the request shall perform a criminal record check for a personal care home within a reasonable time but in any event within a period not to exceed three days of receiving the request (Sec. 31-7-259(e), as amended by H. 1413, L. 2001, effective July 1, 2002).
Each application form provided by the employer to the applicant for employment shall conspicuously state the following: FOR THIS TYPE OF EMPLOYMENT, STATE LAW REQUIRES A CRIMINAL RECORD CHECK AS A CONDITION OF EMPLOYMENT (Sec. 31-7-259(f), as amended by H. 1413, L. 2001, effective July 1, 2002).
Both temporary and regular licenses are subject to suspension or revocation or the department may refuse to issue a regular license if a person becomes a director or employee subsequent to the granting of a license and that person does not undergo the records checks applicable to that director or employee and receive a satisfactory determination (Sec. 31-7-259(g), as amended by H. 1413, L. 2001, effective July 1, 2002).
After the issuance of a regular or temporary license, the department may require a fingerprint records check on any director or employee to confirm identification for records search purposes, or when subsequent to a preliminary records check, the department has reason to believe that the director or employee has a criminal record. The department may require a fingerprints record check on any director or employee during the course of an abuse investigation involving the director or employee. In such instances, the department shall require the director or employee to furnish two full sets of fingerprints which the department shall submit to the GCIC together with appropriate fees collected from the director or employee or personal care home. Upon receipt thereof, the GCIC shall promptly transmit one set of fingerprints to the FBI for a search of bureau records and an appropriate report and retain the other set and promptly conduct a search of its records and records to which it has access. The GCIC shall notify the department in writing of any derogatory finding. Where the department determines that the director or employee has a criminal record, the department shall notify the facility of the unsatisfactory determination and the facility shall take such steps as are necessary so that such person is no longer the director or an employee of the facility (Sec. 31-7-259(h), as amended by H. 1413, L. 2001, effective July 1, 2002).
No personal care home may have any person as an employee after July 1, 2002, unless there is on file in the personal care home an employment history for that person and a satisfactory determination that the person does not have a criminal record (Sec. 31-7-259(i), as amended by H. 1413, L. 2001, effective July 1, 2002).
Except as provided in Sec. 31-7-259(l), a director of a facility having an employee whom that director knows or should reasonably know to have a criminal record will be guilty of a misdemeanor (Sec. 31-7-259(j), as amended by H. 1413, L. 2001, effective July 1, 2002).
This section does not apply to a member of the administrative staff or an applicant for an administrative staff position of a personal care home whose duties do not include management of resident funds or personal contact between that person and any paying resident of the home (Sec. 31-7-259(k), as amended by H. 1413, L. 2001, effective July 1, 2002).
Where a personal care home determines that an applicant for employment has a criminal record but there are matters in mitigation of the criminal record, no physical harm was done to the victim, and the personal care home would like to hire the applicant, the personal care home may submit an application for a preliminary records check to the department on behalf of the potential employee on forms provided by the department. The personal care home shall not hire the potential employee to work in the home until the personal care home receives notification from the department that the applicant either has a satisfactory criminal record check or an administrative law judge has determined that the applicant is authorized to work in a personal care home (Sec. 31-7-259(l), as amended by H. 1413, L. 2001, effective July 1, 2002).
Except as provided in Sec. 31-7-259(l) just above, a personal care home that hires an applicant for employment with a criminal record is in violation of licensing requirements and the department is authorized to impose a civil penalty (Sec. 31-7-259(m), as amended by H. 1413, L. 2001, effective July 1, 2002).
Nursing homes.- Prior to hiring an employment applicant, each nursing home must request a criminal record check from the GCIC to determine whether the applicant has a criminal record. A nursing home must make a written determination for each applicant for whom a criminal record check is performed. A nursing home must not employ a person with an unsatisfactory determination (Sec. 31-7-351(a), as amended by H. 263, L. 2001, effective July 1, 2001).
Any request for a criminal record check under this section must be on a form approved by the GCIC and submitted in person, by mail, or by facsimile request to any county sheriff or municipal law enforcement agency having access to GCIC information. The fee must be no greater than the actual cost of processing the request. The law enforcement agency receiving the request must perform a criminal record check for a nursing home within a reasonable time but in any event within a period not to exceed three days of receiving the request (Sec. 31-7-351(b)).
Each application form provided by the employer to the employment applicant must conspicuously state the following: “FOR THIS TYPE OF EMPLOYMENT, STATE LAW REQUIRES A CRIMINAL RECORD CHECK AS A CONDITION OF EMPLOYMENT.” (Sec. 31-7-351(c)).
A nursing home, its administrator, and its employees will have no liability for wrongful discharge, unemployment security benefits, or any other claim based upon (Sec. 31-7-352(b)):
Refusal to employ any person with a criminal record;
Termination of employment of persons with a criminal record already employed by the home; or
Other action taken in good faith reliance upon GCIC information received.
A nursing home that hires an applicant for employment with a criminal record will be liable for a civil monetary penalty in the amount of the lesser of $2500 or $500 for each day that a violation of Sec. 31-7-351(a) above occurs. The daily civil monetary penalty will be imposed only from the time the nursing home administrator knew or should have known that the nursing home has in its employ an individual with a criminal record and until the date such individual is terminated (Sec. 31-7-353, as added by H. 263, L. 2001, effective July 1, 2001).
Day care centers.- Accompanying any application for a new license for a facility, the applicant must furnish to the department a records check application for the director (chief administrative or executive officer of a facility) and a satisfactory preliminary records check for each employee of such facility. “Employee” is defined as any person, other than a director, employed by a center to perform at any of the center's facilities any duties that involve personal contact between that person and any child being cared for at the facility and also includes any adult person who resides at the facility or who, with or without compensation, performs duties for the center that involve personal contact between that person and any child being cared for by the center. In lieu of such records check applications, the applicant may submit evidence, satisfactory to the department, that within the immediately preceding 12 months the director received satisfactory state and national fingerprint records check determinations and each employee received a satisfactory preliminary records check determination, or that any employee other than the director whose preliminary records check revealed a criminal record (see definition just below) of any kind has either subsequently received satisfactory state and national fingerprint records check determinations or has had the unsatisfactory determination reversed. The department may either perform preliminary records checks under agreement with the GCIC or contract with the GCIC and appropriate law enforcement agencies that have access to GCIC information to have those agencies perform for the department a preliminary records check for each preliminary records check application submitted thereto by the department. Reasonable fees may be charged (Sec. 49-5-60, as amended by Act 320 (H. 30), L. 1999; and Sec. 49-5-62, as amended by Act 320 (H. 30), L. 1999).
“Criminal record” means (Sec. 49-5-60, as amended by Act 320 (H. 30), L. 1999):
Conviction of a crime (any felony; simple battery, when the victim is a minor; contributing to the delinquency of a minor; sexual offenses, excluding the offenses of bigamy or marrying a bigamist; criminal attempt when the crime attempted is any of the crimes specified by this paragraph; or any other offenses committed in another jurisdiction which, if committed in Georgia, would be one of the enumerated crimes listed in this paragraph);
Arrest, charge, and sentencing for a crime where: (a) a plea of nolo contendere was entered to the charge; (b) first offender treatment without adjudication of guilt pursuant to the charge was granted; provided, however, that this division does not apply to a violation of Ch. 13 of Title 16, relating to controlled substances, or any other offense committed in another jurisdiction which, if it were committed in Georgia, would be a violation of Ch. 13 of Title 16 if such violation or offense constituted only simple possession; or (c) adjudication or sentence was otherwise withheld or not entered on the charge; provided, however, that this division does not apply to a violation of Ch. 13 of Title 16, relating to controlled substances, or any other offense committed in another jurisdiction which, if it were committed in Georgia, would be a violation of Ch. 13 of Title 16 if such violation or offense constituted only simple possession; or
Arrest and being charged for a crime if the charge is pending, unless the time for prosecuting such crime has expired.
After being furnished the required records check application under Sec. 49-5-62 above, the department must notify in writing the license applicant as to each person for whom an application was received regarding whether the department's determination as to that person's state fingerprint records check was satisfactory or unsatisfactory. If the preliminary records check determination was satisfactory as to each employee of an applicant's facility and the state fingerprint records check was satisfactory as to the director, that applicant may be issued a license for that facility if the applicant otherwise qualifies for a license. If the state or national fingerprint records check determination was unsatisfactory as to the director of an applicant's facility, the applicant must designate another director for that facility after receiving notification of the determination and proceed under Sec. 49-5-62 above and this section to obtain state and national fingerprint records checks for that newly designated director. If the preliminary records check for any employee other than the director revealed a criminal record of any kind, such employee will not be allowed to work in the center until he or she either has obtained satisfactory state and national fingerprint records check determinations or has had the unsatisfactory determination reversed. If the determination was unsatisfactory as to any employee of an applicant's facility, the applicant must, after receiving notification of that determination, take such steps as are necessary so that such person is no longer an employee. Any employee other than the director who receives a satisfactory preliminary records check will not be required to obtain a fingerprint records check unless such an employee has been designated as a director or as permitted by Sec. 49-5-69(c) below (Sec. 49-5-63, as amended by Act 320 (H. 30), L. 1999).
The department must transmit to GCIC both sets of fingerprints and the records search fee from each fingerprint records check application. Upon receipt thereof, GCIC must promptly transmit one set of fingerprints to the FBI for a search of bureau records and an appropriate report and must retain the other set and promptly conduct a search of its records and records to which it has access. Within 10 days after receiving fingerprints acceptable to GCIC, the application, and fee, GCIC must notify the department in writing of any derogatory finding, including but not limited to any criminal record, of the state fingerprint records check or if there is no such finding. After a search of FBI records and fingerprints and upon receipt of the bureau's report, the department will make a national fingerprint records determination (Sec. 49-5-64, as amended by Act 320 (H. 30), L. 1999).
After receiving an FBI report regarding a national fingerprint records check under Sec. 49-5-64 above, the department will make a determination based thereon and notify in writing the license applicant as to whether that records check was satisfactory or unsatisfactory. If the national fingerprint records check determination was unsatisfactory as to the director of an applicant's facility, after receiving notification of that determination, that applicant must designate another director for such facility for which director the applicant has not received or made an unsatisfactory preliminary or fingerprint records check determination and proceed under the requirements of Secs. 49-5-62-49-5-64 above and this section to obtain state and national fingerprint records check determinations for the newly designated director. The director may begin working upon the receipt of a satisfactory state fingerprint records check determination pending the receipt of the national fingerprint records check determination from the department. The department may revoke the license of that facility if the facility fails to comply with this section and Sec. 49-5-63 above to receive satisfactory state and national fingerprint determinations on the director or to comply with Sec. 49-5-63 above regarding employees other than the director (Sec. 49-5-65, as amended by Act 320 (H. 30), L. 1999).
No facility operated as a day-care center, family day-care home, group-care facility, group day-care home, or similar facility or any operator of such a facility may employ any person who has been convicted of or who has entered a plea of guilty or nolo contendere to any offense specified in Sec. 16-12-1.1 or allow any such person to reside at or be domiciled at such facility in violation of Sec. 16-12-1.1. The department will either deny the issuance of or revoke the license, commission, or registration of any such facility violating this section (Sec. 49-5-65.1).
An individual who resides in a family day-care home will not be required to provide fingerprints for routine fingerprints records checks if the operator of the family day-care home provides the department with an affidavit stating that such individual is not present in the home at the same time as the children who are received for pay for supervision and care. However, all persons residing in a family day-care home are required to obtain satisfactory preliminary records checks and submit them to the department (Sec. 49-5-67(a), as added by Act 320 (H. 30), L. 1999).
As an exception to the requirements set out in this article for employees of centers, a center may hire emergency temporary employees (defined as an employee other than a director whose duties involve personal contact between that person and any child being cared for at the facility and who is hired on an expedited basis to avoid noncompliance with staffing standards for centers required by law, rule, or regulation) in order to avoid noncompliance with staffing requirements for centers required by law, rule, or regulation. An emergency temporary employee may start working immediately after requesting a preliminary records check from a local law enforcement agency and may work up to five working days without the results of the preliminary records check if the director of the center maintains an affidavit and supporting documents in the employee's personnel file stating that the emergency temporary employee applied for a preliminary records check with a local law enforcement agency before the employee began work and the date that the preliminary records check was received from the local law enforcement agency. The employee's personnel file must be available to the department for inspection. At the end of the five-day work period or upon receipt of the results of the preliminary records check, whichever occurs first, emergency temporary employees become subject to all other requirements of this article (Sec. 49-5-60, as amended by Act 320 (H. 30), L. 1999; and Sec. 49-5-67(b), as added by Act 320 (H. 30), L. 1999).
If the director of a facility that has been issued a license ceases to be the director of that facility, the licensee must then designate a new director. After such change, the licensee of that facility must notify the department of such change and of any additional information the department may require regarding the newly designated director. After receiving a change of director notification, the department must make a written determination from the information furnished with such notification and the department's own records as to whether satisfactory or unsatisfactory preliminary or state and national fingerprint records check determinations have ever been made for the newly designated director. If the department determines that such director within the prior 12 months has had satisfactory state and national fingerprint records check determinations, such determinations will be deemed to be satisfactory state and national fingerprint records check determinations as to that director. The license of that facility will not be adversely affected by that change in director, and the licensee will be so notified (Sec. 49-5-68(a), as amended by Act 320 (H. 30), L. 1999).
If the department determines under Sec. 49-5-68(a) above that there has ever been an unsatisfactory preliminary or state or national fingerprint records check determination of the newly designated director that has not been legally reversed, the center and that director must be so notified. The license for that director's facility will be indefinitely suspended or revoked unless the center designates another director for whom it has not received or made an unsatisfactory preliminary or state or national fingerprint records check determination and proceeds pursuant to the provisions of this section relating to a change of director (Sec. 49-5-68(b), as amended by Act 320 (H. 30), L. 1999).
If the department determines under Sec. 49-5-68(a) (above) that there have been no state and national fingerprint records check determinations regarding the newly designated director within the immediately preceding 12 months, the department must so notify the center. The center must furnish to the department the fingerprint records check application of the newly designated director after the date the notification is sent by the department or the license of that facility will be indefinitely suspended or revoked. If that fingerprint records check application is so received, unless the department has within the immediately preceding 12 months made a satisfactory state fingerprint records check determination regarding the newly designated director, the department must perform a state fingerprint records check determination of the newly designated director; and the applicant and that director must be so notified. If that determination is unsatisfactory, the provisions of Sec. 49-5-68(b) (above) regarding procedures after notification will apply. If that determination is satisfactory, the department must perform a national fingerprint records check determination for that director. The director may begin working upon the receipt of a satisfactory state fingerprint records check determination pending the receipt of the national fingerprint records check determination from the department. If that determination is satisfactory, the center and director for whom the determination was made must be so notified after the department makes its determination, and the license for the facility at which that person is the newly designated director will not be adversely affected by that change of director. If that determination is unsatisfactory, Sec. 49-5-68(b) (above) apply (Sec. 49-5-68(c), as amended by Act 320 (H. 30), L. 1999).
Before a person may become an employee other than a director of any center after that center has received a license, that center must require that person to obtain a satisfactory preliminary records check. The center must maintain documentation in the employee's personnel file, which is available to the department upon request, which reflects that a satisfactory preliminary criminal records check was received before the employee began working with children. If the preliminary records check for any potential employee other than the director reveals a criminal record of any kind, such potential employee must not be allowed to begin working until either such potential employee has obtained satisfactory state and national fingerprint records check determinations or has had the unsatisfactory preliminary or fingerprint records check determination reversed. If either the preliminary or state or national fingerprint records determination is unsatisfactory, the center must, after receiving notification of the determination, take such steps as are necessary so that such person is no longer an employee. Any potential employee other than the director who receives a satisfactory preliminary records check determination will not be required to obtain a fingerprint records check determination except as permitted in accordance with Sec. 49-5-69(c) (below) (Sec. 49-5-69(a), as amended by Act 320 (H. 30), L. 1999).
A license is subject to suspension or revocation and the department may refuse to issue a license if a director or employee does not undergo the records and fingerprint checks applicable to that director or employee and receive satisfactory determinations (Sec. 49-5-69(b), as amended by Act 320 (H. 30), L. 1999).
After the issuance of a license, the department may require a fingerprint records check on any director or employee to confirm identification for records search purposes, when the department has reason to believe the employee has a criminal record that renders the employee ineligible to have contact with children in the center, or during the course of a child abuse investigation involving the director or employee (Sec. 49-5-69(c), as amended by Act 320 (H. 30), L. 1999).
No center may hire any person as an employee after July 1, 1999, unless there is on file in the center an employment history (where the person has worked for the past 10 years) and a satisfactory preliminary records check or, if the preliminary records check determination revealed a criminal record of any kind as to such person, either satisfactory state and satisfactory national records check determinations for that person or proof that an unsatisfactory determination has been reversed (Sec. 49-5-60, as amended by Act 320 (H. 30), L. 1999; and Sec. 49-5-69(d), as amended by Act 320 (H. 30), L. 1999).
A director of a facility having an employee whom that director knows or should reasonably know to have a criminal record that renders the employee ineligible to have contact with children in the center will be guilty of a misdemeanor (Sec. 49-5-69(e), as amended by Act 320 (H. 30), L. 1999).
Any person who knowingly and under false pretenses requests, obtains, or attempts to obtain GCIC information otherwise authorized to be obtained pursuant to this chapter, or who knowingly communicates or attempts to communicate such information obtained pursuant to this article to any person or entity except in accordance with this article, or who knowingly uses or attempts to use such information obtained pursuant to this article for any purpose other than as authorized by this article will be fined not more than $5,000.00, imprisoned for not more than two years, or both (Sec. 49-5-70(b)).
A determination by the department regarding preliminary or fingerprint records checks under this article, or any action by the department revoking, suspending, or refusing to grant or renew a license based upon such determination, will constitute a contested case for purposes of the Georgia Administrative Procedure Act, except that any hearing required to be held pursuant thereto may be held reasonably expeditiously after such determination or action by the department. It is expressly provided that upon motion from any party, the hearing officer may consider matters in mitigation of any conviction, provided the officer examines the circumstances of the case and makes an independent finding that no physical harm was done to a victim and also examines the character and employment history since the conviction and determines that there is no propensity for cruel behavior or behavior involving moral turpitude on the part of the person making a motion for an exception to sanctions normally imposed. If the officer deems a hearing to be appropriate, he or she will also notify at least 30 days prior to such hearing the office of the prosecuting attorney who initiated the prosecution of the case in question in order to allow the prosecutor to object to a possible determination that the conviction would not be a bar for the grant or continuation of a license or employment (Sec. 49-5-73).
Positions involving supervision of children.- On and after July 1, 1986, an employer (defined as any person, organization, corporation, or political subdivision that employs or uses the services of paid employees or volunteers in positions in which the employee or volunteer has supervisory or disciplinary power over a child or children) may require that a new or current employee or volunteer submit to a records check for the purpose of determining whether such person has ever been convicted of a crime or has a criminal record (see definition below) (Sec. 49-5-110; and Sec. 49-5-111(a)).
“Criminal record” means (Sec. 49-5-110):
Conviction of a crime (simple battery, when the victim is a minor; aggravated battery, when the victim is a minor; cruelty to children; contributing to the delinquency of a minor; sexual offenses, excluding the offenses of bigamy or marrying a bigamist; a felony violation relating to controlled substances; murder and felony murder; criminal attempt as it concerns attempted murder; or any other offense committed in another jurisdiction which, if committed in Georgia, would be deemed to be one of the enumerated crimes listed above);
Arrest, charge, and sentencing for a crime where adjudication or sentence was otherwise withheld or not entered on the charge; provided, however, that this subparagraph does not apply to a violation of Ch. 13 of Title 16, relating to controlled substances, or any other offense committed in another jurisdiction which, if it were committed in Georgia, would be a violation of Ch. 13 of Title 16 if such violation or offense constituted only simple possession; or
Arrest and being charged for a crime if the charge is pending, unless the time for prosecuting such crime has expired.
An employer seeking a records check on an employee must submit a records check application to the GCIC. Upon receipt, the GCIC will promptly conduct a search of its records and records to which it has access. Within a reasonable time after receiving the application, the GCIC must notify the employer in writing of any criminal record finding or of the fact of no such finding (Sec. 49-5-111(b)).
Child care institutions.- Criminal history background checks for directors and employees are required. Prior to serving as a director of a licensed center, a person must submit a records check application and receive a satisfactory determination. In addition, prior to serving as an employee other than a director of a licensed center, a person must submit a preliminary record check application and receive a satisfactory determination. Provided however, should there be an unsatisfactory determination, the person must submit to a fingerprint record check and get a satisfactory determination or be determined eligible to be employed by the center as a result of an administrative hearing (Sec. 290-2-6.05(4)(a)(b), amended and effective February 16, 2009).
A person with an unsatisfactory criminal history background check determination may not serve as a director of a licensed children's transition care center if it is determined that such person has a criminal record involving any of the following covered crimes:
Any felony under Georgia law;
A violation of Code Section O.C.G.A. Sec. 16-4-1, relating to criminal attempt when the crime attempted is any of the crimes specified by this paragraph;
A violation of Code Section O.C.G.A. Sec. 16-5- 23, relating to simple battery; where the victim is a minor;
A violation of Code Section O.C.G.A. Sec. 16-6-1 et seq., relating to sexual offenses, excluding the offenses of bigamy or marrying a bigamist;
A violation of Code Section O.C.G.A. Sec. 16-21-1, relating to contributing to the delinquency of a minor;
Any other offense committed in another jurisdiction that, if committed in this state, would be deemed to be a crime listed in this paragraph without regard to its designation elsewhere (Sec. 290-2-6.05(4)(a), amended and effective February 16, 2009).
A person with an unsatisfactory background check determination may not serve as an employee of a licensed children's transition care center if it is determined that such person has a criminal record involving any of the covered crimes outlined above (Sec. 290-2-6.05(4)(3), amended and effective February 16, 2009).
In lieu of a records check application, a director or employee may submit evidence, satisfactory to the department, that within the immediately preceding 12 months the above personnel have received a satisfactory records check determination or a satisfactory preliminary records check determination (Sec. 290-2-6.05(4)(d), amended and effective February 16, 2009).
Firefighters.- Criminal justice agencies must furnish upon written request and without charge to any local fire department in Georgia a copy of the criminal history record information of an applicant for employment (Sec. 35-3-33, as amended by Act 902 (S. 356), L. 1999).
Private detective and security businesses.- Any individual, firm, association, company, partnership, limited liability company, or corporation desiring to engage in the private detective or private security business in Georgia must make a verified application in writing to the joint-secretary for a license therefor (Sec. 43-38-6(a)).
Upon being satisfied of the good character, competency, and integrity of an applicant for licensure or, if the applicant is a firm, association, company, partnership, limited liability company, or corporation, upon being satisfied of the good character, competency, and integrity of the corporate officer of such corporation or officer of such entity, the board may grant a license to conduct a private detective or private security business to such entity if, among other things (Sec. 43-38-6(b)):
The applicant is of good moral character;
The applicant has not been convicted of a felony or any crime involving the illegal use, carrying, or possession of a dangerous weapon or any crime involving moral turpitude; provided, however, that, if the applicant has been convicted of such crime, or has entered a plea of nolo contendere, or has entered a plea pursuant to Art. 3 of Ch. 8 of Title 42 or otherwise been granted first offender treatment, the board may inquire into the nature of the crime, the date of conviction or plea, and other underlying facts and circumstances surrounding such criminal proceedings and, in its discretion, may grant a license to such applicant;
The applicant has not committed an act constituting dishonesty or fraud.
The application must state the applicant's full name, age, date and place of birth; residences and employment within the past five years, with the names and addresses of employers; present occupation; date and place of conviction or arrest for any crime; and such additional information as the board may require to investigate the qualifications, character, competency, and integrity of the applicant. Each applicant must submit with the application two complete sets of fingerprints on forms specified and furnished by the board and one photograph taken within six months prior to the application; provided, however, that the board may waive the submission of fingerprints and photograph for any employee who has been employed by a person licensed under this chapter within the previous 12 months (Sec. 43-38-6(c)).
An applicant for a license must agree in writing on the application that if such applicant makes a false statement in the application or if such applicant has been found to have been convicted of a felony and has not had all his or her civil rights restored pursuant to law, then the board will be authorized to suspend any license granted to such applicant without a prior hearing. Upon request, any such person will be entitled to a hearing on such matter subsequent to the suspension (Sec. 43-38-6(f)).
Except as provided in Sec. 43-38-7(b)(2) below, within 30 days of hiring such agents, operators, assistants, guards, watchmen, or patrolmen, the licensee must make application to register such employees with the board (Sec. 43-38-7(b)(1)).
Any guard, watchman, or patrolman who will be unarmed and who will be employed in the private security business will not be registered by the board, but will be governed by Sec. 43-38-7.1 below (Sec. 43-38-7(b)(2)).
Except as otherwise provided in Sec. 43-38-7(b)(2) above, upon being satisfied of the employee's character, competency, and eligibility for registration, the board may register such employee if (Sec. 43-38-7(c)):
The employee is of good moral character;
The employee has not been convicted of a felony or any crime involving the illegal use, carrying, or possession of a dangerous weapon or any crime involving moral turpitude; provided, however, that, if the employee has been convicted of such crime, or has entered a plea of nolo contendere to such crime, or has entered a plea pursuant to Art. 3 of Ch. 8 of Title 42 or otherwise been granted first offender treatment, the board may inquire into the nature of the crime, the date of conviction or plea, and other underlying facts and circumstances surrounding such criminal proceedings and, in its discretion, may allow the employee to be registered;
The employee has not committed an act constituting dishonesty or fraud.
The application for registration must state, among other things, the date and place of conviction or arrest for any crime. The application must also be accompanied by two sets of fingerprints of the employee (Sec. 43-38-7(d)).
Any person who is to be registered as described just above must agree in writing on the application that if such person makes a false statement in the application or if such person has been found to have been convicted of a felony and has not had all his or her civil rights restored pursuant to law, then the board will be authorized to suspend any registration granted to such applicant without a prior hearing. Upon request, any such person will be entitled to a hearing on such matter subsequent to the suspension (Sec. 43-38-7(g)).
Any individual, firm, association, company, partnership, limited liability company, or corporation engaged in the private security business and licensed pursuant to Sec. 43-38-6 above must be required to maintain registration records of all guards, watchmen, or patrolmen who are unarmed pursuant to rules and regulations of the board. A licensee will not be required to register such unarmed employees with the board (Sec. 43-38-7.1(a)).
The licensee must forward fingerprints received from each prospective registrant to the GCIC of the GBI for the purpose of criminal identification through the fingerprint system of identification established by the GBI and the fingerprint system of investigation established by the FBI (Sec. 43-38-7.1(b)).
It is the duty of the licensee to keep a record of all information received from the GBI and the FBI with respect to criminal identification and to cooperate with the GBI, similar departments in other states, and the U.S. Department of Justice in any criminal identification system (Sec. 43-38-7.1(c)).
At such times as the board may require, fingerprint cards of registrants may be periodically reprocessed by a licensee to identify criminal convictions subsequent to registration (Sec. 43-38-7.1(d)).
The board will forward the necessary fingerprints received from each prospective licensee and registrant required to be licensed or registered by the board under this chapter to the GCIC or the GBI for the purpose of criminal identification through the fingerprint system of identification established by such bureau and the fingerprint system of investigation established by the FBI (Sec. 43-38-9(a)).
At such times as the board may require, fingerprint cards of licensees and registrants may be periodically reprocessed to identify criminal convictions subsequent to licensure or registration (Sec. 43-38-9(c)).
The board has the authority to refuse to grant a license or registration to an applicant therefor or to revoke the license or registration of a person licensed or registered by the board or to discipline a person licensed or registered by the board upon a finding by a majority of the entire board that the licensee, registrant, or applicant has (Sec. 43-38-11(a)):
Failed to demonstrate the qualifications or standards for a license or registration contained in this chapter or the rules or regulations under which licensure is sought or held. It is incumbent upon the applicant to demonstrate to the satisfaction of the board that he or she meets all the requirements for the issuance of a license or registration and, if the board is not satisfied as to the applicant's qualifications, it may deny a license or registration without a prior hearing; provided, however, that the applicant must be allowed to appear before the board if he or she so desires;
Made any false statement or given any false information in connection with an application for license or registration;
Knowingly violated this chapter or any rule or regulation related to this chapter;
Been convicted, in the courts of Georgia or of the U.S., or in the courts of any other state, territory, or country, of a felony, or any crime involving the illegal use, carrying, or possession of a dangerous weapon, or any crime involving moral turpitude;
Been arrested, charged, and sentenced for the commission of a felony, any crime involving the illegal use, carrying, or possession of a dangerous weapon, or any crime involving moral turpitude, where: (a) a plea of nolo contendere was entered to the charge; (b) first offender treatment was granted without adjudication of guilt pursuant to the charge; or (c) an adjudication or sentence was otherwise withheld or not entered on the charge;
Become unable to engage in the private detective or private security business with reasonable skill and safety to the public by reason of illness; use of alcohol, drugs, narcotics, chemicals, or any other type of material; or any other mental or physical condition. The board may, however, after investigation of the circumstances surrounding each application, approve for licensure and registration those individuals who produce certified medical evidence of having been successfully treated and cured of alcoholism, drug addiction, or mental illness;
Committed any act in the practice of the private detective or private security business constituting dishonesty or fraud;
Impersonated, or permitted or aided and abetted any other person to impersonate, a law enforcement officer or employee of the U.S. or of Georgia or of any political subdivision thereof in the practice of the private detective or private security business;
Committed a felony, any crime involving the illegal use, carrying, or possession of a dangerous weapon, or any crime involving moral turpitude;
Knowingly violated, or advised, encouraged, or assisted in the violation of, any court order or injunction in the course of the private detective or private security business or knowingly advised, encouraged, or assisted in the violation of any lawful order issued by the board;
Failed to demonstrate the qualifications or standards for licensure or registration. It is incumbent upon the applicant to demonstrate to the satisfaction of the board that he or she meets all the requirements for licensure or registration; and, if the board is not satisfied as to the applicant's qualifications, it has the power to deny such licensure or registration.
If the board finds that any applicant for licensure or any prospective registrant is unqualified to be granted such license or to be registered, the board may (Sec. 43-38-11(b)(1)):
Deny the application for licensure or registration; or
Limit or restrict any license or registration for a definite period of time.
If, after notice and hearing, the board finds that the license or registration of any holder thereof should be revoked or otherwise sanctioned, the board may take any one or more of the following actions (Sec. 43-38-11(b)(2)):
Administer a public reprimand;
Suspend any license or registration for a definite period of time;
Limit or restrict any license or registration for a definite period of time;
Revoke or suspend a license or registration;
Fine any licensee or registrant in an amount not to exceed $500.00 for each violation of a law or rule or regulation; or
Place a licensee or registrant on probation for a definite period of time and impose such conditions of probation as will adequately protect the public during that period. In its discretion, the board may restore or reinstate a license or registration that has been sanctioned and, in conjunction therewith, may impose any disciplinary or corrective action provided for in this chapter.
Initial judicial review of a final decision of the board may be had solely in the Superior Court of Fulton County (Sec. 43-38-11(c)).
Charitable solicitors.- Applications for registration as a paid solicitor for a charitable organization must contain a written consent to a criminal background investigation for the purpose of verification by the Secretary of State of information provided in the application (Sec. 43-17-3, as amended by Act 932 (S. 499), L. 1999, effective July 1, 2000).
Applications for registration as a paid solicitor who solicits contributions on behalf of a charitable organization must contain a written consent to a criminal background investigation for the purpose of verification by the Secretary of State of information provided in the application (Sec. 43-17-3.1, as added by Act 932 (S. 499), L. 1999, effective July 1, 2000).
GCIC -access to information.- The GCIC is authorized to (Sec. 35-3-34(a), as amended by H. 613, L. 1999, effective July 1, 2000):
Make criminal history records maintained by the center available to private persons and businesses under the following conditions: (a) Private individuals and businesses requesting criminal history records must, at the time of the request, provide the fingerprints of the person whose records are requested or provide a signed consent of the person whose records are requested on a form prescribed by the center; (b) The center may not provide records of arrests, charges, and sentences for crimes relating to first offenders pursuant to Art. 3 of Ch. 8 of Title 42 in cases where offenders have been exonerated and discharged without court adjudications of guilt, except as specifically authorized by law; (c) When the identifying information provided is sufficient to identify persons whose records are requested electronically, the center may disseminate electronically criminal history records of in-state felony convictions, pleas, and sentences without fingerprint comparison or consent of the person whose records are requested;
Charge fees for disseminating records pursuant to this section which will raise an amount of revenue that approximates the costs to the state for providing such disseminations.
If an employment decision is made adverse to a person whose record was obtained pursuant to this section, the person will be informed by the business or person making the adverse employment decision of all information pertinent to that decision. This disclosure must include information that a record was obtained from the center, the specific contents of the record, and the effect the record had upon the decision. Failure to provide all such information to the person subject to the adverse decision is a misdemeanor (Sec. 35-3-34(b), as amended by H. 613, L. 1999, effective July 1, 2000).
Local criminal justice agencies may disseminate criminal history records, without fingerprint comparison or prior contact with the center, to private individuals and businesses under the same conditions as set forth in Sec. 35-3-34(a)(1) above and may charge fees as needed to reimburse such agencies for their related costs (Sec. 35-3-34(d), as amended by H. 613, L. 1999, effective July 1, 2000).
When identifying information provided is sufficient to identify persons whose records are requested, local criminal justice agencies may disseminate criminal history records of in-state felony convictions, pleas, and sentences without (Sec. 35-3-34(d.2), as amended by H. 613, L. 1999, effective July 1, 2000):
Fingerprint comparison;
Prior contact with the center; or
Consent of the person whose records are requested. Such information may be disseminated to private individuals and businesses under the conditions specified in Sec. 35-3-34(a) above upon payment of the fee for the request and when the request is made upon a form prescribed by the center. Such agencies may charge and retain fees as needed to reimburse such agencies for the costs of providing such information.
No fee charged pursuant to this section may exceed $20.00 per person whose criminal history record is requested or be charged to any person or entity authorized prior to January 1, 1995, to obtain information pursuant to this section without payment of such fee (Sec. 35-3-34(d.3), as amended by H. 613, L. 1999, effective July 1, 2000).
Where an offender has been exonerated and discharged without court adjudication of guilt pursuant to Art. 3 of Ch. 8 of Title 42, the center is authorized to provide the first offender's record of arrests, charges, or sentences if (Sec. 35-3-34.1, as added by S. 22, L. 2003, effective July 1, 2004):
The offender was exonerated and discharged without a court adjudication of guilt on or after July 1, 2004; and either
The request for information is an inquiry about a person who has applied for employment with a public school, private school, child welfare agency, or a person or entity that provides day care for minor children or after school care for minor children and the person who is the subject of the inquiry to the center was prosecuted for the offense of child molestation, sexual battery, enticing a child for indecent purposes, sexual exploitation of a child, pimping, pandering, or incest;
The request for information is an inquiry about a person who has applied for employment with a nursing home, personal care home, or a person or entity that offers day care for elderly persons and the person who is the subject of the inquiry to the center was prosecuted for the offense of sexual battery, incest, pimping, pandering, or a violation of Sec. 30-5-8;
The request for information is an inquiry about a person who has applied for employment with a facility that provides services to persons who are mentally ill or mentally retarded, and the person who is the subject of the inquiry to the center was prosecuted for the offense of sexual battery, incest, pimping, or pandering.
National Crime Prevention and Privacy Compact.- The National Crime Prevention and Privacy Compact established by federal law is ratified, enacted and entered into by the state of Georgia. Pursuant to the compact, the GCIC will establish and maintain a criminal history record repository to provide information for noncriminal justice (employment, licensing) purposes (Sec. 35-3-39.1, as amended by Act 902 (S. 356), L. 1999, and by Act 474, L. 1999).
Job reference liability.- An employer or any person employed by an employer and designated as the employer's representative who discloses factual information concerning an employee's or former employee's job performance, any act committed by such employee that would constitute a violation of Georgia law if such act occurred in Georgia, or ability or lack of ability to carry out the duties of such job to a prospective employer of such employee or former employee upon request of the prospective employer or of the person seeking employment is presumed to be acting in good faith, unless lack of good faith is shown by a preponderance of the evidence, unless the information was disclosed in violation of a nondisclosure agreement or the information disclosed was otherwise considered confidential according to applicable federal, state, or local law, rule or regulation (Sec. 34-1-4(b)).
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