Preemployment Inquiries Law Summaries
Mississippi, Preemployment Inquiries Law Summaries
There are several laws in Mississippi pertaining to criminal background checks in employment. The law pertaining to the employment of certified and noninstructional employees in public schools is located at Title 37, Ch. 9.
Criminal background checks are required for operators, employees and volunteers of foster homes (Title 43, Ch. 15). Child residential homes are required to conduct criminal history records checks on all employees and volunteers (Title 43, Ch. 16). The law relating to the employment of personnel and volunteers at agencies providing services for children is located at Title 45, Ch. 31. The Mississippi Department of Mental Health may conduct criminal background checks on prospective employees and volunteers, and there are background check requirements for certain employees in institutions for the aged or infirm (Title 43, Ch. 11).
Persons applying for licenses issued by the State Tax Commission are required to provide criminal history and fingerprint information (Title 27, Ch. 109).
The full text of these laws is available beginning at Employment Practices Guide ¶25-23,600.01 .
References are to the Mississippi Code Annotated.
WHAT THE EMPLOYER MUST DO
Background checks.-Schools.- Superintendents/directors of schools under the purview of the State Board of Education, the superintendent of the local school district and any private firm under contract with the local public school district to provide substitute teachers to teach during the absence of a regularly employed schoolteacher shall require, through the appropriate governmental authority, that current criminal records background checks and current child abuse registry checks are obtained, and that such criminal record information and checks are on file for any new hires applying for employment as a licensed or nonlicensed employee at a school and not previously employed in such school under the purview of the State Board of Education or at such local school district prior to July 1, 2000. In order to determine the applicant's suitability for employment, the applicant must be fingerprinted. If no disqualifying record is identified at the state level, the fingerprints must be forwarded by the Department of Public Safety to the FBI for a national criminal history record check. The fee for such fingerprinting and criminal history record check must be paid by the applicant, not to exceed $50; however, the State Board of Education, the school board of the local school district or a private firm under contract with a local school district to provide substitute teachers to teach during the temporary absence of the regularly employed schoolteacher, in its discretion, may elect to pay the fee for the fingerprinting and criminal history record check on behalf of any applicant. Under no circumstances shall a member of the State Board of Education, superintendent/director of schools under the purview of the State Board of Education, local school district superintendent, local school board member or any individual other than the subject of the criminal history record checks disseminate information received through any such checks except insofar as required to comply with this section (Sec. 37-9-17(2), as amended by Ch. 538 (H. 1377), L. 2005).
If such fingerprinting or criminal record checks disclose a felony conviction, guilty plea or plea of nolo contendere to a felony of possession or sale of drugs, murder, manslaughter, armed robbery, rape, sexual battery, sex offense listed in Sec. 45-33-23(g), child abuse, arson, grand larceny, burglary, gratification of lust or aggravated assault which has not been reversed on appeal or for which a pardon has not been granted, the new hire will not be eligible to be employed at such school. Any employment contract for a new hire executed by the superintendent of the local school district or any employment of a new hire by a superintendent/director of a new school under the purview of the State Board of Education or by a private firm is voidable if the new hire receives a disqualifying criminal record check. However, the State Board of Education or the school board may allow any applicant aggrieved by the employment decision under this section to appear before the respective board, or before a hearing officer designated for such purpose, to show mitigating circumstances which may exist and allow the new hire to be employed. The State Board of Education or local school board may grant waivers for such mitigating circumstances (Sec. 37-9-17(3), as amended by S. 2498, L. 2004, effective July 1, 2004).
No local school district, local school district employee member of the State Board of Education or employee of a school under the purview of the State Board of Education may be held liable in any employment discrimination suit in which an allegation of discrimination is made regarding an employment decision authorized under this section (Sec. 37-9-17(4), as amended by S. 2498, L. 2004, effective July 1, 2004).
Each superintendent of a school district is required to obtain criminal record background checks and child abuse registry checks for all persons applying after July 1, 2002, for employment as a licensed or non-licensed employees at a school within that district. The applicant/employee is fingerprinted on a card provided by the employing school district. Each school district submits the applicant's fingerprint card to the Mississippi Criminal Information Center to check against the Mississippi criminal history database system and to forward to the FBI for a national criminal history record check.
The State Department of Education must obtain current criminal records background checks and current child abuse registry checks on all persons applying for the position of school attendance officer after July 2, 2002. The criminal records information and registry checks must be kept on file for any new hires. In order to determine an applicant's suitability for employment as a school attendance officer, the applicant must be fingerprinted. If no disqualifying record is identified at the state level, the Department of Public Safety shall forward the fingerprints to the FBI for a national criminal history record check. The applicant generally must pay the fee, not to exceed $50.00, for the fingerprinting and criminal records background check; however, the State Department of Education may pay the fee. Under no circumstances may a member of the State Board of Education, employee of the State Department of Education or any person other than the subject of the criminal records background check disseminate information received through any such checks except insofar as required to comply with this subsection (Sec. 37-13-89(2)(a), as amended by H. 643, L. 2002, effective July 2, 2002).
If the fingerprinting or criminal record checks disclose a felony conviction, guilty plea or plea of nolo contendere to a felony of possession or sale of drugs, murder, manslaughter, armed robbery, rape, sexual battery, sex offense listed in Sec. 45-33-23(g), child abuse, arson, grand larceny, burglary, gratification of lust or aggravated assault which has not been reversed on appeal or for which a pardon has not been granted, the applicant is not eligible to be employed as a school attendance officer. Any employment of an applicant pending the results of the fingerprinting and criminal records check is voidable if the new hire receives a disqualifying criminal record check. However, the State Board of Education may allow an applicant aggrieved by the employment decision under this subsection to appear before the board, or before a hearing officer designated for such purpose, to show mitigating circumstances which may exist and allow the new hire to be employed. The State Board of Education or local school board may grant waivers for mitigating circumstances (Sec. 37-13-89(2)(b), as amended by S. 2223, L. 2002, effective July 2, 2002).
A member of the State Board of Education or employee of the State Department of Education may not be held liable in any employment discrimination suit in which an allegation of discrimination is made regarding an employment decision authorized under this section (Sec. 37-13-89(2)(c), as amended by S. 2223, L. 2002, effective June 30, 2002).
The Department of Education (Education) is required to obtain criminal record background checks and child abuse registry checks on all persons applying for school attendance officers after July 2, 2002. Education shall submit the applicant's fingerprint card to the Mississippi Criminal Information Center to check against the Mississippi criminal history database system and to forward to the FBI for a national criminal history record check.
Foster homes.- Any person, institution, facility, clinic, organization or other entity that provides services to children in a residential setting where care, lodging, maintenance, and counseling or therapy for alcohol or controlled substance abuse or for any other emotional disorder or mental illness is provided for children, whether for compensation or not, that holds himself, herself, or itself out to the public as providing such services, and that is entrusted with the care of the children to whom he, she, or it provides services, because of the nature of the services and the setting in which the services are provided, will be subject to this section (Sec. 43-15-6(1), as amended by H. 969, L. 2000, effective July 1, 2000).
Each entity to which this section applies must complete a national criminal history record information check and a child abuse registry check for each owner, operator, employee, prospective employee, volunteer or prospective volunteer of the entity and/or any other that has or may have unsupervised access to a child served by the entity. In order to determine the applicant's suitability for employment, the entity must ensure that the applicant be fingerprinted by local law enforcement, and the results forwarded to the Department of Public Safety. If no disqualifying record is identified at the state level, the fingerprints must be forwarded to the FBI for a national criminal history record check (Sec. 43-15-6(2), as amended by H. 969, L. 2000, effective July 1, 2000).
An owner, operator, employee, prospective employee, volunteer or prospective volunteer of the entity and/or any other that has or may have unsupervised access to a child who has a criminal history of conviction or pending indictment of a crime, whether a misdemeanor or a felony, that bears upon an individual's fitness to have responsibility for the safety and well-being of children as set forth in this chapter may not provide child care or operate, or be licensed as, a residential child care program, foster parent, or foster home (Sec. 43-15-6(3), as amended by H. 969, L. 2000, effective July 1, 2000).
All fees incurred in compliance with this section must be borne by the individual or entity to which Sec. 43-15-6(1) above applies (Sec. 43-15-6(4), as amended by H. 969, L. 2000, effective July 1, 2000).
Any entity that violates this section by failure to complete sex offense criminal history record information and felony conviction record information checks as required above will be subject to a penalty of up to $10,000 for each such violation and may be enjoined from further operation pending compliance (Sec. 43-15-6(6), as amended by H. 969, L. 2000, effective July 1, 2000).
Any person, institution, facility, clinic, organization or entity that provides services to children in a residential setting as described in Sec. 43-15-6(1) above must undergo a national criminal history record check and a child abuse registry check. This includes every owner, operator, employees, prospective employee, volunteer, prospective volunteer or person who may have unsupervised access to a child served by the entities described in Sec. 43-15-6(1). The Mississippi Department of Human Services (DHS) provides the fingerprint card to the individual or entity. DHS submits the fingerprint card to the Mississippi Criminal Information Center (CIC), where it is checked against the Mississippi criminal history system database and forwarded to the FBI for a national criminal history record check.
Child residential homes.- The executive director of a child residential home must provide to the Department of Human Services proof that the home has complied with Sec. 45-31-12 (see below) by having performed sex offense criminal history record information checks and felony conviction record information checks on all employees, prospective employees, volunteers and prospective volunteers at such home, and that such records are maintained to the extent permitted by law, for every such employee, prospective employee, volunteer and prospective volunteer (Sec. 43-16-9, as amended by Ch. 328 (S. 2258), L. 1999).
Entities providing services for children.- Any institution, facility, clinic, organization or other entity that provides services to children in a residential setting where care, lodging, maintenance, and counseling or therapy for alcohol or controlled substance abuse or for any other emotional disorder or mental illness is provided for children, whether for compensation or not, that holds itself out to the public as providing such services, and that is entrusted with the care of the children to whom it provides services, is subject to this section (Sec. 45-31-12(2), as amended by Ch. 330 (S. 2311), L. 1999).
Each entity to which Sec. 45-31-12(2) above applies must complete sex offense criminal history record information and felony conviction record information checks for each employee, prospective employee, volunteer or prospective volunteer of the entity who provides or would provide services to children for the entity. In order to determine the applicant's suitability for employment, the entity must ensure that the applicant be fingerprinted by local law enforcement, and the results forwarded to the Department of Public Safety. If no disqualifying record is identified at the state level, the fingerprints must be forwarded to the FBI for a national criminal history record check (Sec. 45-31-12(3), as amended by Ch. 330 (S. 2311), L. 1999).
Upon receipt of the information from the FBI as to the national criminal history record check, the Department of Public Safety must submit to the applicable entity the following (Sec. 45-31-12(4), as amended by Ch. 330 (S. 2311), L. 1999):
The applicant meets the criteria for employment/licensing under the above state statute; or
The applicant's fingerprints submitted to the FBI were unclassifiable. As a result, only a name-check was conducted, and no criminal record was located. If you desire a further check by fingerprints, please attach a new set of fingerprints to the unclassifiable set and resubmit them to this office for transmittal to the FBI Identification Division; or
The applicant does not meet the criteria for employment/licensing under the above state statute.
No further information will be released unless specifically authorized by the FBI (Sec. 45-31-12(4), as amended by Ch. 330 (S. 2311), L. 1999).
The Department of Public Safety and its employees are exempt from any civil liability as a result of any action taken as to the compilation and/or release of information pursuant to this section and any applicable section of the code (Sec. 45-31-12(4), as amended by Ch. 330 (S. 2311), L. 1999).
No entity to which Sec. 45-31-12(2) above applies may employ any person, or allow any person to serve as a volunteer, who would provide services to children for the entity if the person (Sec. 45-31-12(5), as amended by Ch. 330 (S. 2311), L. 1999):
Has a felony conviction for a crime against persons;
Has a felony conviction under the Uniform Controlled Substances Act;
Has a conviction for a crime of child abuse or neglect;
Has a conviction for any sex offense as defined in Sec. 45-31-3; or
Has a conviction for any other offense committed in another jurisdiction or any federal offense that would constitute one of the offenses listed in this subsection without regard to its designation in that jurisdiction or under federal law.
All fees incurred in compliance with this section must be borne by the entity to which Sec. 45-31-12(2) above applies (Sec. 45-31-12(6), as amended by Ch. 330 (S. 2311), L. 1999).
Any entity that violates this section by failure to complete sex offense criminal history record information and felony conviction record information checks will be subject to a penalty of up to $10,000 for each such violation and may be enjoined from further operation until it complies (Sec. 45-31-12(7), as amended by Ch. 330 (S. 2311), L. 1999).
Childcare facilities licensed by the Mississippi Department of Health require all prospective and current caregivers to undergo a criminal history background check to determine suitability for employment. The Mississippi Department of Health (MDH) provides the fingerprint cards to the facilities. The fingerprints are submitted to Mississippi Criminal Information Center by MDH, checked against the Mississippi criminal history system database, and forwarded to the FBI for a national criminal history record check.
All existing and newly hired employees of agencies and facilities operated by the federal government that hire, or contract for hire, individuals involved with the provision of child care services are required to undergo a criminal history background check. The personnel department of the applicable federal agency must initiate the criminal history record check. The employing federal agency submits the applicant/employee's card to the Mississippi Criminal Information Center for a check of the Mississippi criminal history system database only. CIC return the results to the federal agency.
Child care service.- A child care service employer offering or conducting a child care service (Sec. 43-15-303, as added by Ch. 450 (S. 2053), L. 2005):
shall not employ or permit to volunteer an applicant who is listed on the sex offender registry as a sex offender under Sec. 45-33-25; and
shall not knowingly employ or permit to volunteer an applicant who has been convicted of a sex offense, who has been adjudicated not guilty or a sex offense by reason of insanity; or who has been adjudicated physically or mentally incompetent.
A child care service employer who violates this section is guilty of a misdemeanor, and upon conviction shall be fined not more than $25,000, imprisoned for a period not to exceed six months, or both. An employer who obtains an official report from the Mississippi Justice Information Center that the applicant is not registered as a sex offender shall not be guilty of a violation of this section, absent the employer's actual knowledge that the applicant is a sex offender (Sec. 43-15-303, as added by Ch. 450 (S. 2053), L. 2005).
Child care facilities shall require that, for any current or prospective caregiver, all criminal records, background and sex offender registry checks and current child abuse registry checks are obtained. In order to determine the applicant's suitability for employment, the applicant shall be fingerprinted. If no disqualifying record is identified at the state level, the fingerprints shall be forwarded by the Department of Public Safety to the FBI for a national criminal history record check (Sec. 43-20-8, as amended by Ch. 450 (S. 2053), L. 2005).
Institutions for the aged or infirm.- For the purposes of this subsection, the term “licensed entity” means a hospital, nursing home, personal care home, home health agency, hospice or adult foster care facility. For the purposes of this subsection, the term “employee” means any individual employed by a covered entity. The term “employee” also includes any individual who by contract provides to the patients, residents or clients being served by the covered entity direct, hands-on, medical patient care in a patient's, resident's or client's room or in treatment or recovery rooms (Sec. 43-11-13(5)(a), as amended by Ch. 423 (H. 1086), L. 2008).
The licensing agency must require to be performed a criminal history record check on (1) every new employee of a covered entity who provides direct patient care or services and who is employed on or after July 1, 2003, and (2) every employee of a covered entity employed before July 1, 2003, who has a documented disciplinary action by his or her present employer. Except as otherwise provided in Sec. 43-11-13(5)(c) below, no such employee hired after or on July 1, 2003, shall be permitted to provide direct patient care until the results of the criminal history record check have revealed no disqualifying record or the employee has been granted a waiver. In order to determine the employee applicant's suitability for employment, the applicant must be fingerprinted. If no disqualifying record is identified at the state level, the fingerprints must be forwarded by the Department of Public Safety to the FBI for a national criminal history record check. If the criminal history record check discloses a felony conviction, guilty plea or plea of nolo contendere to a felony of possession or sale of drugs, murder, manslaughter, armed robbery, rape, sexual battery, sex offense listed in Sec. 45-33-23(g), child abuse, arson, grand larceny, burglary, gratification of lust or aggravated assault, or felonious abuse and/or battery of a vulnerable adult that has not been reversed on appeal or for which a pardon has not been granted, the employee applicant shall not be eligible to be employed by the covered entity. Any such new employee applicant may, however, be employed on a temporary basis pending the results of the criminal history record check, but any employment contract with the new employee shall be voidable if the new employee receives a disqualifying criminal record check and no waiver is granted as provided in this subsection (Sec. 43-11-13(5)(b) and (c), as amended by Ch. 423 (H. 1086), L. 2008).
The licensing agency shall require every employee of a covered entity employed before July 1, 2003, to sign an affidavit stating that he or she has not been convicted of or pleaded guilty or nolo contendere to a felony of possession or sale of drugs, murder, manslaughter, armed robbery, rape, sexual battery, any sex offense listed in Sec. 45-33-23(g), child abuse, arson, grand larceny, burglary, gratification of lust, aggravated assault, or felonious abuse and/or battery of a vulnerable adult, or that any such conviction or plea was reversed on appeal or a pardon was granted for the conviction or plea. No such employee of a licensed entity hired before July 1, 2003, shall be permitted to provide direct patient care until the employee has signed the affidavit required by this paragraph. All such existing employees of covered entities must sign the affidavit required by this paragraph within six months of the final adoption of the regulations promulgated by the State Board of Health. If a person signs the affidavit required by this paragraph, and it is later determined that the person actually had been convicted of or pleaded guilty or nolo contendere to any of the offenses listed in this paragraph and the conviction or plea has not been reversed on appeal or a pardon has not been granted for the conviction or plea, the person is guilty of perjury. If the offense that the person was convicted of or pleaded guilty or nolo contendere to was a violent offense, the person, upon a conviction of perjury under this paragraph, shall be punished as provided in Sec. 97-9-61. If the offense that the person was convicted of or pleaded guilty or nolo contendere to was a nonviolent offense, the person, upon a conviction of perjury under this paragraph, shall be punished by a fine of not more than $500, or by imprisonment in the county jail for not more than six months, or by both such fine and imprisonment (Sec. 43-11-13(5)(d), as amended by Ch. 423 (H. 1086), L. 2008).
The covered entity may, in its discretion, allow any employee who is unable to sign the required affidavit or any employee applicant aggrieved by the employment decision under this subsection to appear before the covered entity's hiring officer, or his or her designee, to show mitigating circumstances that may exist and allow the employee or employee applicant to be employed by the covered entity. The covered entity, upon report and recommendation of the hiring officer, may grant waivers for those mitigating circumstances (Sec. 43-11-13(5)(e), as amended by Ch. 423 (H. 1086), L. 2008).
If the results of an employee applicant's criminal history record check reveals no disqualifying event, then the covered entity shall, within two weeks of the notification of no disqualifying event, provide the employee applicant with a notarized letter signed by the CEO of the covered entity, or his or her authorized designee, confirming the employee applicant's suitability for employment based on his or her criminal history record check. An employee applicant may use that letter for a period of two years from the date of the letter to seek employment with any covered entity with the necessity of an additional criminal history record check. Any covered entity presented with the letter may rely on the letter with respect to an employee applicant's criminal background and is not required for a period of two years from the date of the letter to conduct or have conducted a criminal history record check as required in this subsection (Sec. 43-11-13(5)(g), as amended by Ch. 423 (H. 1086), L. 2008).
The licensing agency, the covered entity, and their agents, officers, employees, attorneys and representatives, shall be presumed to be acting in good faith for any employment decision or action taken under this subsection. The presumption of good faith may be overcome by a preponderance of the evidence in any civil action. No licensing agency, covered entity, nor their agents, officers, employees, attorneys and representatives shall be held liable in any employment decision or action based in whole or in part on compliance with or attempts to comply with the requirements of this subsection (Sec. 43-11-13(5)(h), as amended by Ch. 423 (H. 1086), L. 2008).
The Mississippi State Department of Health (MDH) is required to have new employees of a licensed entity who provide direct patient care and who are employed after July 1, 2002, and every employee of a licensed entity employed prior to July 1, 2002, who has documented disciplinary action by his or her present employer, to undergo a criminal history background check to determine suitability for employment. MDH provides the fingerprint card to the applicant/employee to be fingerprinted. MDH submits the fingerprint card to the Mississippi Criminal Information Center (CIC) to be checked against the Mississippi criminal history system database, and forwarded to the FBI for a national criminal history record check. CIC return the results of the criminal history check to the MDH. MDH determines the suitability of the applicant for employment.
Any home health care agency or nursing facility may require applicants for employment to undergo a criminal history record check. The fingerprint cards are provided to the facility by the MDH. The agency or facility submits the fingerprints to the MDH along with a statement signed by the applicant authorizing the record check. The MDH submits the set of fingerprints to CIC. The fingerprints are checked against the Mississippi criminal history system database and forwarded to the FBI for a national criminal history record check. CIC return the results of the criminal history records check to the MDH to be disseminated to the requesting facility. The facility determines the suitability of the applicant for employment.
Mental health employees.- The Board of Mental Health shall be authorized to fingerprint and perform a criminal history record check on every employee or volunteer. Every employee and volunteer must provide a valid current social security number and/or driver's license number which shall be furnished to conduct the criminal history record check. If no disqualifying record is identified at the state level, fingerprints must be forwarded to the FBI for a national criminal history record check (Sec. 41-4-7, as amended by H. 739, L. 2003).
The Mississippi Board of Mental Health (MH) is authorized to fingerprint and perform a criminal history records check on every new employee and volunteer. MH submits the applicant/employee or volunteer set of fingerprints to the Mississippi Criminal Information Center. The fingerprints are checked against the Mississippi criminal history system database and forwarded to the FBI for a national criminal history record check. The results of the check are sent from the FBI to CIC and then to the MH. MH determines the suitability of the applicant or volunteer for employment.
Drivers of commercial motor vehicles.- Any person who applies to be a commercial motor vehicle driver must provide the employer, at the time of the application, with the following information for the 10 years preceding the date of application (Sec. 63-1-205, as added by H. 1115, L. 2009, effective July 1, 2009):
A list of the names and addresses of the applicant's previous employers for which the applicant was a driver of a commercial motor vehicle;
The dates between which the applicant drove for each employer; and
The reason for leaving that employer.
The applicant must certify that all information furnished is true and complete. An employer may require an applicant to provide additional information (Sec. 63-1-205, as added by H. 1115, L. 2009, effective July 1, 2009).
Each employer shall require the applicant to provide the information specified just above (Sec. 63-1-206, as added by H. 1115, L. 2009, effective July 1, 2009).
State Tax Commission.- The State Tax Commission may adopt regulations (Sec. 27-109-3):
prescribing the information to be furnished by any applicant for a privilege license or licensee concerning his or her antecedents, habits, character, associates, criminal record, business activities and financial affairs, past or present.
requiring fingerprinting of an applicant or licensee, and casino and alcoholic beverage personnel of a licensee, or other methods of identification for such persons and the forwarding of all fingerprints taken pursuant to regulation to the FBI.
requiring any applicant to pay all or any part of the fees and costs of investigation of such applicant as may be determined by the commission.
Department of Human Services.- Effective July 1, 2005, the Department of Human Services shall fingerprint and perform a criminal history record check on every employee or volunteer (1) who has direct access to clients of the department who are children or vulnerable adults, or (2) who are in a position of fiduciary responsibility. Every such employee and volunteer shall provide a valid current social security number and/or driver's license number , which shall be furnished to conduct the criminal history record check. If no disqualifying record is identified at the state level, fingerprints shall be forwarded to the FBI for a national criminal history record check (Sec. 43-1-4, as amended by S. 2453, L. 2005, effective July 1, 2005).
Department of Banking.- As a condition of employment with the Department of Banking, the Commissioner of Banking shall require all employees and applicants for employment with the department to be fingerprinted to determine their suitability for employment as examiners or assistants as needed. If no disqualifying record is identified at the state level, the Department of Public Safety shall forward the fingerprints to the FBI for a national criminal history record check (Sec. 81-1-65, as amended by S. 2343, L. 2007, effective March 22, 2007).
Information Technology.- To qualify for the position of an information confidentiality officer with the Department of Information Technology Services, a person must undergo a criminal history record check. The person is fingerprinted and the set of fingerprints is forwarded to the Mississippi Criminal Information Center, checked against the Mississippi criminal history system database, and forwarded to the FBI for a national criminal history record check.
Mortgage companies.- Applicants of mortgage companies applying for registration or licensure from the Department of Banking and Consumer Finance (Banking) are required to undergo criminal history record checks. The fingerprint cards are provided to the applicant by Banking. Banking submits a set of fingerprints obtained by a local law enforcement entity to the Mississippi Criminal Information Center. The prints are checked against the Mississippi criminal history system database and forwarded to FBI for a national criminal history record check.
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