Preemployment Inquiries Law Summaries
Iowa, Preemployment Inquiries Law Summaries
There are several laws in Iowa pertaining to criminal background checks in employment. The law pertaining to the employment of personnel in child care and dependent adult care facilities is at Title IV, Subtitle 2, Ch. 135C. The state also has provisions relating to records checks of hospital employees.
Provisions pertaining to the access, request and filing of criminal history records are at Title XVI, Subtitle 1, Ch. 692. The National Crime Prevention and Privacy Compact Act, enacted by S. 2145, L. 1999, is located at Title XVI, Subtitle 1, Ch. 692B.
The full text of these laws is available beginning at Employment Practices Guide ¶16-23,600.01 .
Iowa's job reference liability law is located at Title III, Subtitle 2, Chapter 91B. The full text of this law is available at Wages-Hours ¶16-64,052 .
References are to the Code of Iowa.
DEFINITIONS
Job reference liability law.- See ¶16-1200 for definition of “employee” and “employer.”
WHAT THE EMPLOYER MUST DO
Background checks.-Child and dependent adult care.- Prior to employment of a person in a facility, the facility must request that the department of public safety perform criminal and dependent adult abuse record checks of the person in Iowa. In addition, the facility may request that the department of human services perform a child abuse record check in Iowa. A facility must inform all persons prior to employment regarding the performance of the records checks and must obtain, from the persons, a signed acknowledgment of the receipt of the information. Additionally, a facility must include the following inquiry in an application for employment: “Do you have a record of founded child or dependent adult abuse or have you ever been convicted of a crime, in this state or any other state?” If the person has been convicted of a crime under a law of any state or has a record of founded child or dependent adult abuse, the department of human services must perform an evaluation to determine whether the crime or founded child or dependent adult abuse warrants prohibition of employment in the facility. If a person owns or operates more than one facility, and an employee of one of such facilities is transferred to another such facility without a lapse in employment, the facility is not required to request additional criminal and dependent adult abuse record checks of that employee (Sec. 135C.33(1), as amended by H. 228 and H. 655, L. 2001, effective July 1, 2001).
If the department of public safety determines that a person has committed a crime or has a record of founded adult abuse and is to be employed in a facility licensed under this chapter, the department of public safety must notify the licensee that an evaluation will be conducted by the department of human services to determine whether prohibition of the person's employment is warranted. If a department of human services child abuse record check determines the person has a record of founded child abuse, the department of human services must inform the licensee that an evaluation will be conducted to determine whether prohibition of the person's employment is warranted (Sec. 135C.33(2), as amended by H. 228 and H. 655, L. 2001, effective July 1, 2001).
Except as provided just below, a person who has committed a crime or has a record of founded child or dependent adult abuse shall not be employed in a facility licensed under this chapter unless an evaluation has been performed by the department of human services. If the department of human services determines from the evaluation that the person has committed a crime or has a record of founded child or dependent adult abuse which warrants prohibition of employment, the person must not be employed in a facility licensed under this chapter (Sec. 135C.33(4)(a), as amended by H. 2588, L. 2005, enacted April 20, 2006).
A person with a criminal or abuse record who is employed by a facility licensed under this chapter and is hired by another licensee without a lapse in employment shall be subject to the criminal history and abuse record checks required pursuant to Sec. 135C.33(1). If an evaluation was previously performed by the department of human services concerning the person's criminal or abuse record and it was determined that the record did not warrant prohibition of the person's employment and the latest record checks do not indicate a crime was committed or founded abuse record was entered subsequent to that evaluation, the person may commence employment with the other licensee while the department of human services' evaluation of the latest record checks is pending. Otherwise, the requirements of Sec. 135C.33(4)(a) remain applicable to the person's employment (Sec. 135C.33(4)(b), as amended by H. 2588, L. 2005, enacted April 20, 2006).
This section applies to prospective employees of all of the following, if the provider is regulated by the state or receives any state or federal funding (Sec. 135C.33(5), as amended by H. 228 and H. 655, L. 2001, effective July 1, 2001):
An employee of a homemaker, home-health aide, home-care aide, adult day services, or other provider of in-home services if the employee provides direct services to consumers.
An employee of a hospice, if the employee provides direct services to consumers.
An employee who provides direct services to consumers under a federal home and community-based services waiver.
An employee of a certified elder group home, if the employee provides direct services to consumers.
An employee of a certified or voluntarily accredited assisted living facility, if the employee provides direct services to consumers.
Prior to the employment of such an employee, the provider must request the performance of the criminal and dependent adult abuse record checks and may request the performance of the child abuse record. The provider must inform the prospective employee and obtain the prospective employee's signed acknowledgment. The department of human services will perform the evaluation of any criminal record or founded child or dependent adult abuse record and will make the determination of whether a prospective employee of a provider may not be employed by the provider (Sec. 135C.33(5), as amended by H. 228 and H. 655, L. 2001, effective July 1, 2001).
Hospitals.- A licensed hospital may access the single contact repository established by the Department of Inspections and Appeals as necessary for the hospital to perform record checks of persons employed or being considered for employment by the hospital (Sec. 135B.34, as added by S. 2231, L. 2001).
Access to information.- The department of public safety may provide copies or communicate information from criminal history data to a person or public or private agency, upon written application on a form approved by the commissioner of public safety and provided by the department to law enforcement agencies, subject to the following restrictions (Sec. 692.2(1)):
A request for criminal history data must be submitted in writing by mail or as otherwise provided by rule. However, the department shall accept a request presented in person if it is from an individual or an individual's attorney and requests the individual's personal criminal history data.
The request must identify a specific person by name and date of birth. Fingerprints of the person named may be required.
Criminal history data that does not contain any disposition data after eighteen months from the date of arrest may only be disseminated by the department to criminal or juvenile justice agencies, to the person who is the subject of the criminal history data or the person's attorney, or to a person requesting the criminal history data with a signed release from the person who is the subject of the criminal history data authorizing the requesting person access to criminal history data.
Upon receipt of official notification of the successful completion of probation following a deferred judgment, criminal history data regarding the person who successfully completed the probation may only be disseminated by the department to a criminal or juvenile justice agency, to the person who is the subject of the criminal history data or the person's attorney, or to another person with a signed release from the person who is the subject of the criminal history data authorizing the requesting person access to the criminal history data.
Records of acquittals or dismissals by reason of insanity and records of adjudications of mental incompetence to stand trial in cases in which physical or mental injury or an attempt to commit physical or mental injury to another was alleged may not be disseminated to persons or agencies other than criminal or juvenile justice agencies or persons employed in or by those agencies.
A person who requests criminal history data will not be liable for damages to the person whose criminal history data is requested for actions the person requesting the information may reasonably take in reliance on the accuracy and completeness of the criminal history data received from the department if all of the following are true (Sec. 692.2(3)):
The person requesting the criminal history data in good faith believes the criminal history data to be accurate and complete.
The person requesting the criminal history data has complied with this chapter.
The identifying information submitted to the department by the person requesting the criminal history data is accurate regarding the person whose criminal history data is sought.
Unless otherwise provided by law, access under this section to criminal history data by a person or public or private agency does not create a duty upon a person, or employer, member, or volunteer of a public or private agency to examine the criminal history data of an applicant, employee, or volunteer (Sec. 692.2(4)).
A person other than the department of public safety may not disseminate criminal history data maintained by the department to persons who are not criminal or juvenile justice agencies (Sec. 692.2(5)).
The department may charge a fee to any nonlaw enforcement person or agency to conduct criminal history data checks (Sec. 692.2(6)).
However, the fee for conducting a criminal history data check for a person seeking release of a certified copy of the person's own criminal history data to a potential employer, if that employer requests the release in writing, will not be paid by the person, but by the employer (Sec. 692.2(6)).
National Crime Prevention and Privacy Compact.- The National Crime Prevention and Privacy Compact has been enacted into law and entered into by the state of Iowa. The purposes of the compact, among other things, are to require party states to provide information and records for the national identification index and the national fingerprint file and to provide criminal history records, in a timely fashion, to criminal history record repositories of other states and the federal government for noncriminal justice purposes, including employment suitability and licensing determinations (Sec. 692B.2, as added by S. 2145, L. 1999, effective July 1, 2000).
Job reference liability.- An employer or an employer's representative who, upon request by or authorization of a current or former employee or upon request made by a person who in good faith is believed to be a representative of a prospective employer of a current or former employee, provides work-related information about a current or former employee, is immune from civil liability unless the employer or the employer's representative acted unreasonably in providing the work-related information (Sec. 91B.2, as added by S. 280, L. 1997, effective July 1, 1997).
An employer acts unreasonably if any of the following are present (Sec. 91B.2, as added by S. 280, L. 1997, effective July 1, 1997):
The work-related information violates a civil right of the current or former employee.
The work-related information knowingly is provided to a person who has no legitimate and common interest in receiving the work-related information.
The work-related information is not relevant to the inquiry being made, is provided with malice, or is provided with no good faith belief that it is true.
<p>An employer acts unreasonably if any of the following are present (Sec. 91B.2, as added by S. 280, L. 1997, effective July 1, 1997):</p>