Preemployment Inquiries Law Summaries
Utah, Preemployment Inquiries Law Summaries
The Utah Antidiscrimination Act contains general preemployment inquiry provisions (Title 34A, Ch. 5).
Governor Jon Huntsman Jr. signed Utah’s comprehensive immigration bill into law on March 13, 2008. The bill (S. 81, L. 2008) will take effect July 1, 2009. This law, with amendments by S. 39, L. 2009, is codified in the Utah Code Annotated at Title 63G, Chapter 11, Sections 63G-11-101 through 63G-11-104 (Renumbered from Title 63, per Section 12 of S. 81, L. 2008).
There are several laws in Utah pertaining to criminal background checks in employment. Employees and volunteers of public and private schools are required to undergo a criminal background check (Title 53A, Ch. 3). The provision pertaining to the licensing of teachers is located at Title 53A, Ch. 6, Sec. 53A-6-401. Interns at schools are required to undergo a criminal background check (Title 53A, Ch. 29, Sec. 53A-29-104).
Employees of health care facilities are required to undergo a background check (Title 26, Ch. 21, Sec. 26-21-9.5). The Nurse Practice Act also contains criminal background check requirements. There are also regulatory provisions relating to health care facilities. The provision relating to the licensing of child care facilities and background checks for their personnel is located at Title 25, Ch. 39, Sec. 26-39-107. Personnel at agencies providing services for children are required to submit a set of fingerprints and undergo a criminal background check (Title 62A, Ch. 4a, Sec. 62A-4a-413).
Security personnel are required to undergo a criminal background check prior to the issuance of a license (Title 58, Ch. 63, Secs. 58-63-102, 58-63-301 and 58-63-302). There are also regulatory provisions relating to security personnel. The law relating to the licensing of real estate brokers is located at Title 61, Ch. 2, Sec. 61-2-9.
Certain cities may require a criminal background check as a condition of providing ground transportation service to the city's airport (H. 110, L. 2006).
There are restrictions on the use of criminal history record information (Title 53, Ch. 10, Sec. 53-10-108). The law pertaining to the use of criminal history information by aging and adult services is located at Title 62A, Ch. 3, Sec. 62A-3-311.1. There are restrictions on the use of expunged criminal records for employment purposes (Title 77, Ch. 18, Secs. 77-18-10 and 77-18-14). The provision relating to the inspection of court records is located at Title 78, Ch. 3a, Sec. 78-3a-206.
The full text of these laws is available beginning at Employment Practices Guide ¶46-23,600.01 .
Utah's general job reference liability law is located at Title 34, Ch. 42. The job reference liability law for teachers is located at Title 53A, Ch. 6.
Utah's verification for eligibility for employment in the United States provision is located in the Utah Administrative Code at R477-2.
The Employment Selection Procedures Act is enacted effective May 12, 2009. This law applies to employers of 15 or more employees and addresses procedures used by employers to select employees, including imposing requirements related to information collected on an individual. Title 34, Chapter 45, Sections 34-45-101 through 34-45-302, added by H. 206, L. 2009, enacted March 24, 2009, and effective May 12, 2009.
References are to the Utah Code Annotated.
DEFINITIONS
The following definitions apply only to the Identity Documents and Verification provisions (see WHAT THE EMPLOYER MUST DO below):
“Contract” means an agreement for the procurement of goods or services that is awarded through a request for proposals process with a public employer and includes a sole source contract (Sec. 63G-11-103(1)(a), as added by S. 39, L. 2009, effective July 1, 2009).
“Contractor” means a subcontractor, contract employee, staffing agency, or any contractor regardless of its tier (Sec. 63G-11-103(1)(b), as added by S. 81, L. 2008, and amended by S. 39, L. 2009, effective July 1, 2009).
“Public employer” means a department, agency, instrumentality, or political subdivision of the state (Sec. 63G-11-103(1)(c), as added by S. 81, L. 2008, and amended by S. 39, L. 2009, effective July 1, 2009).
“Status Verification System” means an electronic system operated by the federal government, through which an authorized official of a state agency or a political subdivision of the state may inquire by exercise of authority delegated pursuant to 8 U.S.C., Sec. 1373, to verify the citizenship or immigration status of an individual within the jurisdiction of the agency or political subdivision for a purpose authorized under this section (Sec. 63G-11-103(1)(d), as added by S. 81, L. 2008, and amended by S. 39, L. 2009, effective July 1, 2009).
“Status Verification System” includes (Sec. 63G-11-103(1)(d), as added by S. 81, L. 2008, effective July 1, 2009):
the electronic verification of the work authorization program of the Illegal Immigration Reform and Immigration Responsibility Act of 1996, 8 U.S.C., Sec. 1324a, known as the E-verify Program;
an equivalent federal program designated by the United States Department of Homeland Security or other federal agency authorized to verify the work eligibility status of a newly hired employee pursuant to the Immigration and Reform Control Act of 1986;
the Social Security Number Verification Service or similar online verification process implemented by the United States Social Security Administration; or
an independent third-party system with an equal or higher degree of reliability as the programs, systems, or processes described above.
The following relates to the Employment Selection Procedures Act (Sections 34-45-101 et seq.):
“Applicant” means an individual that provides information to an employer for the purpose of obtaining employment (Sec. 34-45-102 (1), added by H. 206, L. 2009, effective May 12, 2009).
“Employer” means a person employing 15 or more employees within the state for each working day in each of 20 calendar weeks or more in the current or preceding calendar year (Sec. 34-45-102 (3), added by H. 206, L. 2009, effective May 12, 2009).
“Initial Selection Process” means the receipt of information in a record from an applicant that the employer uses to determine whether the applicant will be considered for a second review for the position for which the applicant is applying (Sec. 34-45-102 (6), added by H. 206, L. 2009, effective May 12, 2009).
WHAT THE EMPLOYER MUST DO
Unless based upon a bona fide occupational qualification, or required by, and given to, an agency of government for security reasons, an employer may not make any inquiry in connection with prospective employment that expresses any limitation, specification, or discrimination as to race, color, religion, sex, pregnancy, childbirth, or pregnancy-related conditions, national origin, age (40 and over), or disability. Intent to make any such limitation, specification, or discrimination is also considered discrimination (Sec. 34A-5-106, as amended by S. 93, L. 1999, effective May 3, 1999).
Identity Documents and Verification (Immigration).- See also “Verification of employment eligibility” below.Creation of identity documents; issuance to citizens, nationals and legal permanent resident aliens; exceptions.- The following entities may create, publish, or otherwise manufacture an identification document, identification card, or identification certificate and possess an engraved plate or other device for the printing of an identification document (Sec. 63G-11-102(1), as added by S. 81, L. 2008, effective July 1, 2009):
a federal, state, or local government agency for employee identification, which is designed to identify the bearer as an employee;
a federal, state, or local government agency for purposes authorized or required by law or a legitimate purpose consistent with the duties of the agency, including such documents as voter identification cards, driver licenses, identification cards, passports, birth certificates, and Social Security cards; and
a public school or state or private educational institution to identify the bearer as an administrator, faculty member, student, or employee.
The name of the issuing entity shall be clearly printed upon the face of the identification document (Sec. 63G-11-102(2), as added by S. 81, L. 2008, effective July 1, 2009).
Except as otherwise provided under state or federal law, an entity providing an identity document, card, or certificate shall issue such document, card, or certificate only to the following (Sec. 63G-11-102(3) as added by S. 81, L. 2008, effective July 1, 2009):
a U.S. citizen;
a national; or
a legal permanent resident alien.
The restriction relating to identity documents, cards and certificates (above) does not apply to an applicant for an identification document who presents, in person, valid documentary evidence of the applicant's (Sec. 63G-11-102(4), as added by S. 81, L. 2008, effective July 1, 2009):
unexpired immigrant or nonimmigrant visa status for admission into the United States;
pending or approved application for asylum in the United States;
admission into the United States as a refugee;
pending or approved application for asylum in the U.S.;
approved deferred action status; or
pending application for adjustment of status to legal permanent resident or conditional resident.
A contractor or public employer may issue an identification document to a job applicant who satisfies the requirements above for identification document applicants (Sec. 63G-11-102(4)). Except as otherwise provided by federal law, this type of identity document is valid only (a) during the period of time of the individual's authorized stay in the United States or (b) for one year from the date of issuance if there is no definite end to the individual's period of authorized stay. Contractors and public employers who issue this type of an identification document must clearly indicate on the document that it is temporary and its expiration date (Sec. 63G-11-102(4)(b), as added by S. 81, L. 2008, effective July 1, 2009).
An individual may renew a temporary identity document issued under Sec. 63G-11-102(4) only upon presentation of valid documentary evidence that the status by which the individual originally qualified for the identification document has been extended by the United States Citizenship and Immigration Services or other authorized agency of the United States Department of Homeland Security (Sec. 63G-11-102(4)(c), as added by S. 81, L. 2008, effective July 1, 2009).
Restrictions for identity documents under Section 63G-11-102(3) (pertaining to U.S. citizens, nationals, and legal permanent resident aliens) also does not apply to an identification document issued by a public employer that is only (Sec. 63G-11-102(5), as added by S. 81, L. 2008, effective July 1, 2009):
valid for use on the educational institution's campus or facility; and
includes a statement of the restricted use conspicuously printed upon the face of the identification document.
Identity documents issued per Section 63G-11-102(3) (pertaining to U.S. citizens, nationals, and legal permanent resident aliens) does not apply to a driving privilege card issued or renewed under Sec. 53-3-207 (Sec. 63G-11-102(5), as added by S. 81, L. 2008, effective July 1, 2009).
This provison of law relating to identity documents and verification must be enforced without regard to race, religion, gender, ethnicity, or national origin (Sec. 63G-11-102(6), as added by S. 81, L. 2008, effective July 1, 2009).
Status verification system; registration and use; performance or services; unlawful practice.- Each public employer shall register with and use a Status Verification System to verify the federal employment authorization status of a new employee. This requirement must be enforced without regard to race, religion, gender, ethnicity or national origin (Sec. 63G-11-103(2), as added by S. 81, L. 2008, and amended by S. 39, L. 2009, effective July 1, 2009).
Beginning July 1, 2009 (Sec. 63G-11-103(3)(a), as added by S. 81, L. 2008, and amended by S. 39, L. 2009, effective July 1, 2009):
a public employer may not enter into a contract for the physical performance of services within the state with a contractor unless the contractor registers and participates in the Status Verification System to verify the work eligibility status of the contractor's new employees that are employed in the state; and
a contractor shall register and participate in the Status Verification System in order to enter into a contract with a public employer.
For purposes of compliance with the above registration and participation requirements, a contractor is individually responsible for verifying the employment status of only new employees who work under the contractor's supervision or direction and not those who work for another contractor or subcontractor. Each contractor or subcontractor who works under or for another contractor must certify to the main contractor by affidavit that the employment status of each new employee has been verified through the Status Verification System (Sec. 63G-11-103(3)(b), as added by S. 81, L. 2008, and as amended by S. 39, L. 2009, effective July 1, 2009).
Status Verification System registration and participation requirements do not apply to a contract (Sec. 63G-11-103(3)(c), as added by S. 81, L. 2008, and amended by S. 39, L. 2009, effective July 1, 2009):
entered into by public employers and contractors prior to July 1, 2009, even though the contract may involve the physical performance of services within the state on or after July 1, 2009; or
that involves underwriting, remarketing, broker-dealer activities, securities placement, investment advisory, financial advisory, or other financial or investment banking services.
It is unlawful for an employing entity in the state to discharge an employee working in Utah who is a United States citizen or permanent resident alien and replace the employee with, or have the employee's duties assumed by, an employee who (Sec. 63G-11-103(4)(a), as added by S. 81, L. 2008, and amended by S. 39, L. 2009, effective July 1, 2009):
the employing entity knows, or reasonably should have known, is an unauthorized alien hired on or after July 1, 2009; and
is working in the state in a job category (a) that requires equal skill, effort, and responsibility; and (b) which is performed under similar working conditions, as defined in 29 U.S.C. Sec. 206(d)(1), as the job category held by the discharged employee.
An employing entity, which on the date of a discharge in question referred to in Sec. 63G-11-103(4)(a) (just above) is enrolled in and using the Status Verification System to verify the employment eligibility of its employees in Utah who are hired on or after July 1, 2009, is exempt from liability, investigation, or lawsuit arising from an action under this section (Sec. 63G-11-103(4)(b), as added by S. 81, L. 2008, and amended by S. 39, L. 2009, effective July 1, 2009).
Employment Selection Procedures Act.-Job applications.- An employer may not request an applicant's Social Security Number, date of birth, and driver license number before (a) the individual is offered a job or (b) if applicable to a specific position for which the applicant is applying, and with the applicant's consent, at the time in the employer's employment selection process when the employer obtains a criminal background check; credit history (subject to federal Fair Credit Reporting Act requirements); or driving record from the Driver License Division (in accordance with Sec. 53-3-104 or 53-3-420). Such information collected in the initial application process can not be used by the employer for any other purpose than to determine whether or not the employer will hire the applicant as an employee. Further, the employer can not provide information about an applicant obtained through the selection process to a person other than the employer except for the following: (1) an employer may provide information to a government official at the request of the government official; (2) if an applicant applies for another position with the employer; or (3) if the applicant becomes an employee and the information is used for one or more of the following, that is also applied to other employees in a similar position: (a) a performance review or (b) a promotion application. Information collected as part of the employment selection process can not be used for marketing, profiling, reselling of the information, or similar use. Employers must maintain a specific policy regarding retention, disposition, access and confidentiality of the information and must allow an applicant an opportunity to review this policy, upon request, prior to being required to provide information as part of the initial selection process. Information obtained on an individual applicant by an employer as part of an initial employment selection process, except where otherwise required by law, can not be retained more than two years after the day on which the applicant provides the information to the employer, if an employer does not hire the applicant within that two-year period. The Labor Commission's Division of Antidiscrimination and Labor has authority to enforce this law and to investigate any alleged violations; Where a violation has been determined to have occurred, violators may be ordered to cease and desist the action and/or pay a fine of up to $500 per violation. A representative of the division may enter a place of employment during business hours in order to inspect the records as part of an investigation (Sections 34-45-102 through 34-45-302, added by H. 206, L. 2009, effective May 12, 2009).
Background checks.-Schools.- A school district superintendent or the superintendent's designee (Sec. 53A-3-410(1), as amended by Ch. 377 (H. 364), L. 1999, effective May 2, 1999):
must require a potential employee or a volunteer who will be given significant unsupervised access to a student in connection with the volunteer's assignment to submit to a criminal background check as a condition for employment or appointment; and
where reasonable cause exists, may require an existing employee or volunteer to submit to a check.
The chief administrative officer of a private school may require (Sec. 53A-3-410(2), as amended by Ch. 377 (H. 364), L. 1999, effective May 2, 1999):
a potential employee or volunteer to submit to a criminal background check as a condition for employment or appointment; and
where reasonable cause exists, an existing employee or volunteer to submit to a criminal background check.
The applicant, volunteer, or employee will receive written notice that the background check has been requested (Sec. 53A-3-410(3), as amended by Ch. 377 (H. 364), L. 1999, effective May 2, 1999).
Fingerprints of the individual must be taken, and the Criminal Investigations and Technical Services Division of the Department of Public Safety will release the individual's full record of criminal convictions to the administrator requesting the information (Sec. 53A-3-410(4)(a)(i), as amended by Ch. 377 (H. 364), L. 1999, effective May 2, 1999).
The division must maintain a separate file of fingerprints submitted under Sec. 53A-3-410(4)(a)(i) above and notify the State Office of Education when a new entry is made against a person whose fingerprints are held in the file regarding (Sec. 53A-3-410(4)(a)(ii), as amended by Ch. 377 (H. 364), L. 1999, effective May 2, 1999):
any matters involving an alleged sexual offense;
any matters involving an alleged felony or class A misdemeanor drug offense; or
any matters involving an alleged offense against the person under Title 76, Ch. 5.
Information received by the division from entities other than agencies or political subdivisions of the state may not be released to a private school unless the release is permissible under applicable laws or regulations of the entity providing the information (Sec. 53A-3-410(4)(b), as amended by Ch. 377 (H. 364), L. 1999, effective May 2, 1999).
The superintendent, local school board, or their counterparts at a private school must consider only those convictions that are job-related (Sec. 53A-3-410(5), as amended by Ch. 377 (H. 364), L. 1999, effective May 2, 1999).
The district or private school must pay the cost of the background check, except the applicant may be required to pay the cost as a condition for consideration for employment or appointment, if (Sec. 53A-3-410(6), as amended by Ch. 377 (H. 364), L. 1999, effective May 2, 1999):
the applicant: has passed an initial review; is one of a pool of no more than five candidates for a position; and except as may be otherwise provided by state board rule for an applicant who submitted to a background check while completing a higher education program at a Utah institution of higher education, has not been the subject of a criminal background check of similar scope during the preceding two years that was requested by a potential employer or the State Board of Education; and
a copy of the background check is provided to the district or school considering employment or appointment of the applicant.
The Criminal Investigations and Technical Services Division must, upon request, seek additional information from regional or national criminal data files in responding to inquiries under this section (Sec. 53A-3-410(7), as amended by Ch. 377 (H. 364), L. 1999, effective May 2, 1999).
A private school seeking information from the FBI or other national criminal data file that the private school may not access directly must submit its request to the Teacher Certification Section of the State Board of Education, together with the required fee and the school's criminal data-related criteria for limiting or rejecting employment (Sec. 53A-3-410(8)(a), as amended by Ch. 377 (H. 364), L. 1999, effective May 2, 1999).
The section must submit the request and, upon receiving the requested information, must determine whether the subject of the inquiry is entitled to employment under the school's criteria (Sec. 53A-3-410(8)(b)).
The section must disclose its determination to the school, but may not disclose the data in the national criminal data file (Sec. 53A-3-410(8)(c), as amended by Ch. 377 (H. 364), L. 1999, effective May 2, 1999).
The applicant, volunteer, or employee must have opportunity to respond to any information received as a result of the background check. A private school applicant, volunteer, or employee who wishes to respond must submit a request to the school and give a written statement to the Teacher Certification Office authorizing the office to release the background check information to a hearing officer selected by the individual and the school. The individual and the school must equally share any costs incurred. A public agency will resolve any request for review by an applicant, volunteer, or employee seeking employment or employed by the agency through normal administrative procedures established by the agency (Sec. 53A-3-410(9), as amended by Ch. 377 (H. 364), L. 1999, effective May 2, 1999).
If a person is denied employment or is dismissed from employment because of information obtained through a criminal background check, the person must receive written notice of the reasons for denial or dismissal and have an opportunity to respond as described above (Sec. 53A-3-410(10), as amended by Ch. 377 (H. 364), L. 1999, effective May 2, 1999).
Information obtained under this part is confidential and may only be disclosed as provided in this section (Sec. 53A-3-410(11), as amended by Ch. 377 (H. 364), L. 1999, effective May 2, 1999).
A public educator license applicant must submit to a background check as a condition for licensing (Sec. 53A-6-401(1)(a), as amended by Ch. 24 (H. 181), L. 2000, effective May 1, 2000).
The Criminal Investigations and Technical Services Division must release to the Utah State Office of Education all information received in response to the office's request (Sec. 53A-6-401(2)(b), as amended by Ch. 24 (H. 181), L. 2000, effective May 1, 2000).
The Criminal Investigations and Technical Services Division must maintain a separate file of fingerprints submitted under Sec. 53A-6-401(2)(a) and notify the office when a new entry is made against a person whose fingerprints are held in the file regarding any matters involving an alleged (Sec. 53A-6-401(2)(c), as amended by Ch. 24 (H. 181), L. 2000, effective May 1, 2000):
sexual offense;
felony or class A misdemeanor drug offense; or
offense against the person under Title 76, Ch. 5, Offenses Against the Person.
An applicant must have opportunity to respond to any information received by the office as a result of the background check (Sec. 53A-6-401(3), as amended by Ch. 24 (H. 181), L. 2000, effective May 1, 2000).
In preparing recommendations concerning licensing for submission to the board, the office must consider only the following matters obtained through fingerprint checks to the extent that they are relevant to the license sought by the applicant (Sec. 53A-6-401(4), as amended by Ch. 24 (H. 181), L. 2000, effective May 1, 2000):
convictions;
any matters involving an alleged sexual offense;
any matters involving an alleged felony or class A misdemeanor drug offense;
any matters involving an alleged offense against the person under Title 76, Ch. 5;
any matters involving a felony;
any matters involving a class A misdemeanor property offense alleged to have occurred within the previous three years; and
any matters involving any other type of criminal offense, if more than one occurrence of the same type of offense is alleged to have taken place within the previous eight years.
If a recommendation is made for denial of licensure because of information obtained through a background check, the person will receive written notice of the reasons for the recommendation and have an opportunity to respond (Sec. 53A-6-401(5), as amended by Ch. 24 (H. 181), L. 2000, effective May 1, 2000).
Information obtained under this section is confidential and may only be disclosed as provided in this part (Sec. 53A-6-401(6)).
The applicant must pay the costs of conducting the background check (Sec. 53A-6-401(7), as amended by Ch. 24 (H. 181), L. 2000, effective May 1, 2000).
Internship programs.- Officers and employees of a cooperating employer who will be given significant, unsupervised access to a student in connection with the student's activities as an intern will be considered to be volunteer school workers solely for purposes of criminal background checks under Sec. 53A-3-410 (Sec. 53A-29-104).
Higher education institutions.- The State Board of Regents shall adopt a policy providing for criminal background checks of prospective employees or institutions and existing employees of institutions, where reasonable cause exists (Sec. 53B-1-110(2), as added by H. 196, L. 2007).
The policy shall require that (Sec. 53B-1-110(3), as added by H. 196, L. 2007):
an applicant for any position (other than an adjunct faculty position) that involves significant contact with minors or any position considered to be security sensitive by the board or its designee shall submit to a criminal background check as a condition of employment; and
an existing employee submit to a criminal background check, where reasonable cause exists.
The policy may allow or require applicants for positions other than those described in item (1) just above to submit to a criminal background check as a condition of employment. The policy may allow criminal background checks for new employees to be phased in over a two-year period. The applicant or employee shall receive written notice that the background check has been requested. Each applicant or employee subject to a criminal background check under this section shall, if required by the institution (Sec. 53B-1-110(3)-(5), as added by H. 196, L. 2007):
be fingerprinted; and
consent to a fingerprint background check by the Utah Bureau of Criminal Identification and the FBI.
Institutions may request the Utah Bureau of Criminal Identification to conduct criminal background checks of prospective employees and, where reasonable cause exists, existing employees pursuant to board policy (Sec. 53B-1-110(6)(a), as added by H. 196, L. 2007).
At the request of an institution, the Utah Bureau of Criminal Identification shall (Sec. 53B-1-110(6)(b), as added by H. 196, L. 2007):
release the individual's full record of criminal convictions to the administrator requesting the information; and
seek additional information from regional or national criminal data files in responding to inquiries under this section.
Information received by the Utah Bureau of Criminal Identification from entities other than agencies or political subdivisions of the state may not be released to a private entity unless the release is permissible under applicable laws or regulations of the entity providing the information (Sec. 53B-1-110(6)(c), as added by H. 196, L. 2007).
Except as otherwise provided by law, the institution shall pay the cost of background checks conducted by the Utah Bureau of Criminal Identification. The board may by policy require an applicant to pay the costs of a criminal background check as a condition of employment (Sec. 53B-1-110, as added by H. 196, L. 2007).
The applicant or employee shall have an opportunity to respond to any information received as a result of the criminal background check. If a person is denied employment or is dismissed from employment because of information obtained through a criminal background check, the person shall receive written notice of the reasons for denial or dismissal and have an opportunity to respond to the reasons under procedures established by the board in policy (Sec. 53B-1-110, as added by H. 196, L. 2007).
Health care.- In addition to other licensing requirements, a covered health care facility, defined as a home health care agency, hospice, nursing care facility, assisted-living facility, small health care facility, or end stage renal disease facility, at the time of initial application for a license and license renewal must (Sec. 26-21-9.5(1) and (10), as amended by Ch. 276 (S. 194), L. 1999):
submit the name and other identifying information of each person associated with the facility who provides direct care to a patient and has been the subject of a criminal background check within the preceding three-year period by a public or private entity recognized by the Department of Health; and
submit the name and other identifying information, which may include fingerprints, of each person associated with the facility who provides direct care to a patient and has not been the subject of a criminal background check in accordance with item (1) just above.
The Department of Health will forward the information received under item (2) just above to the Criminal Investigations and Technical Services Division of the Department of Public Safety for processing to determine whether an individual has been convicted of any crime. If an individual has not had residency in Utah for the last five years, the individual must submit fingerprints for an FBI national criminal history record check. The individual or licensee is responsible for the cost of the fingerprinting and national criminal history check (Sec. 26-21-9.5(2), as amended by Ch. 276 (S. 194), L. 1999).
The Department of Health may determine whether (Sec. 26-21-9.5(3), as amended by Ch. 276 (S. 194), L. 1999):
an individual whose name and other identifying information has been submitted pursuant to Sec. 26-21-9.5(1) above and who provides direct care to children has a substantiated finding of child abuse or neglect by accessing the licensing part of the management information system created in Sec. 62A-4a-116 if identification as a possible perpetrator of child abuse or neglect is relevant to the employment activities of that individual; or
an individual whose name and other identifying information has been submitted pursuant to Sec. 26-21-9.5(1) and who provides direct care to disabled or elder adults has a substantiated finding of abuse, neglect, or exploitation of a disabled or elder adult by accessing the database created in Sec. 62A-3-311.1 if identification as a possible perpetrator of disabled or elder adult abuse, neglect, or exploitation is relevant to the employment activities of that person.
Within 10 days of initially hiring an individual, a covered health care facility must submit the individual's information to the Department of Health in accordance with Sec. 26-21-9.5(1) (Sec. 26-21-9.5(5), as amended by Ch. 276 (S. 194), L. 1999).
The Department of Health will adopt rules defining the circumstances under which a person who has been convicted of a criminal offense or has a substantiated report of child abuse or neglect or disabled or elder adult abuse, neglect, or exploitation may provide direct care to a patient in a covered health care facility, taking into account the nature of the criminal conviction or substantiated finding and its relation to patient care (Sec. 26-21-9.5(6), as amended by Ch. 276 (S. 194), L. 1999).
The Department of Health may assess reasonable fees for a criminal background check processed pursuant to this section (Sec. 26-21-9.5(7), as amended by Ch. 276 (S. 194), L. 1999).
The Department of Health may inform the covered health care facility of the criminal conviction or substantiated finding of child abuse or neglect of an individual associated with the facility (Sec. 26-21-9.5(8)).
A covered health care facility is not civilly liable for submitting information to the Department of Health as required by Sec. 26-21-9.5(1) above (Sec. 26-21-9.5(9), as amended by Ch. 276 (S. 194), L. 1999).
The Utah Code, Sec. 26-21-9.5 (see above), requires that a Bureau of Criminal Identification screening, referred to as BCI, and a child or disabled or elderly adult management information system screening be conducted on each person who provides direct care to a patient for the following covered health care facilities (Sec. R432-35-1, as amended effective January 14, 2002):
home health care agencies;
hospice agencies;
nursing care facilities;
assisted living facilities;
small health care facilities; and
end stage renal disease facilities.
The Utah Code, Sec. 26-21-9.5, requires that a BCI screening be conducted on covered individuals (all proposed employees who provide direct patient care in a covered health care facility, including volunteers, existing employees, persons contracted to perform direct care and, for residential settings, all individuals residing in the home where an assisted living or small health care program is to be licensed, who are 18 years old and over) requesting to be licensed, to renew a license, or to be employed or volunteer in a covered health care facility (Sec. R432-35-3 and Sec. R432-35-4, as amended effective January 14, 2002).
The health care facility must submit applicant information within 10 days of initially hiring an individual, include fees and releases to the Department of Health to allow the department to perform a criminal background screening (Sec. R432-35-4, as amended effective January 14, 2002).
If the BCI indicates that the covered individual has a criminal record that indicates there is a conviction for a felony or misdemeanor, the department must review the criminal convictions to determine whether to approve the covered individual for licensing or employment (Sec. R432-35-4, as amended effective January 14, 2002).
If a covered individual applicant has not had residency in Utah for the last five years, the covered individual must submit fingerprints for an FBI national criminal history record check (Sec. R432-35-4, as amended effective January 14, 2002).
The department shall review any criminal convictions to determine if action should be taken to protect the health and safety of patients and residents receiving health care services in the covered health care facility (Sec. R432-35-4, as amended effective January 14, 2002).
If the department takes an action adverse to any covered individual, based upon the criminal background screening, it must send a Notice of Agency Action to the health care provider and the covered individual explaining the action and the right of appeal (Sec. R432-35-4, as amended effective January 14, 2002).
As required by Utah Code Ann. Sec. 26-21-9.5(6), if a covered individual has been convicted of a felony or a misdemeanor that is not excluded under paragraphs (2) or (3) below, the covered individual may not provide direct patient care or volunteer. If such a covered individual resides in a home where health care is provided, the department may revoke an existing license or and refuse to permit health care services in the home until the department is reasonably convinced that the covered individual no longer resides in the home or that the individual will not have unsupervised contact with any child or disabled or elderly adult in care at the home (Sec. R432-35-5(1), as adopted effective January 14, 2002).
As allowed by Utah Code Ann. Sec. 26-21-9.5(6), the department hereby excludes the following misdemeanors and determines that a misdemeanor conviction listed below does not disqualify a covered individual from providing direct patient care (Sec. R432-35-5(2), as adopted effective January 14, 2002):
any class B or C conviction under Ch. 6, Title 76, Offenses Against Property, Utah Criminal Code;
any class B or C conviction under Ch. 6a, Title 76, Pyramid Schemes, Utah Criminal Code;
any class B or C conviction under Ch. 8, Title 76, Offenses Against the Administration of Government, Utah Criminal Code;
any class B or C conviction under Ch. 9, Title 76, Offenses Against Public Order and Decency, Utah Criminal Code, except for Sec. 76-9-301.8, Bestiality; 76-9-702, Lewdness; and 76-9-702.5, Lewdness Involving Child; and
any class B or C conviction under Ch. 10, Title 76, Offenses Against Public Health, Welfare, Safety and Morals, Utah Criminal Code, except for 76-10-1201 to 1229.5, Pornographic and Harmful Materials and Performances; 76-10-1301 to 1314, Prostitution; and 76-10-2301, Contributing to the Delinquency of a Minor.
The Executive Director may exclude, on a case-by-case basis, other misdemeanors not covered under paragraph (2) above if the misdemeanor did not involve violence against a child or a family member or unauthorized sexual conduct with a child or disabled adult (Sec. R432-35-5(3), as adopted effective January 14, 2002).
The department shall rely on the criminal background screening and search of court records as conclusive evidence of the conviction and the department may revoke or deny a license and employment based on that evidence (Sec. R432-35-5(4), as adopted effective January 14, 2002).
If the department denies a covered individual a license or employment based upon the criminal background screening and the covered individual disagrees with the information provided by the Criminal Investigations and Technical Services Division or court record, the covered individual may challenge the information as provided in Utah Code Ann. Secs. 77-18-10-77-18-15 (Sec. R432-35-5(5), as adopted effective January 14, 2002).
All covered health care facilities must report all felony and misdemeanor arrests, charges or convictions of covered individuals to the department within 48 hours of discovery (Sec. R432-35-5, as adopted effective January 14, 2002).
Pursuant to Utah Code 26-21-9.5(3), the department must screen all covered individuals for a history of substantiated abuse or neglect, from the management information system maintained by the Utah Department of Human Services (DHS) for children and disabled or elder adults (Sec. R432-35-6(1), as renumbered effective January 14, 2002).
If a covered individual appears on the management information system, the department must review the date of the substantiated finding, type of substantiation, written documentation, and the legal status of the covered individual (Sec. R432-35-6(2), as renumbered effective January 14, 2002).
If the department determines there exists credible evidence that the covered individual poses a threat to the safety and health of children or disabled or elder adults being served in a covered health care facility, the department shall not grant or renew a license, or employment (Sec. R432-35-6(3), as renumbered effective January 14, 2002).
If the department denies or revokes a license or employment based upon the child or disabled or elder adult abuse management information system, the department must send a Notice of Agency Action to the licensee and the covered individual (Sec. R432-35-6(4), as renumbered effective January 14, 2002).
If the covered individual disagrees with the record of substantiation of abuse, he or she must pursue an appeal with the DHS. If the covered individual agrees with the substantiated finding of abuse that was the basis of the department's denial or revocation, but disagrees with the department's denial or revocation, the covered individual may request a hearing with the department (Sec. R432-35-6(5), as renumbered effective January 14, 2002).
Upon request, the department may permit the covered individual to be employed under supervision until a decision is reached and if the applicant can demonstrate that the work arrangement does not pose a threat to the safety and health of children or disabled or elder adults being served in the licensed health care facility (Sec. R432-35-6(5), as renumbered effective January 14, 2002).
If a covered individual appeals the record of substantiation, the department may hold the license or employment denial in abeyance until DHS renders a decision (Sec. R432-35-6(5), as renumbered effective January 14, 2002).
If the DHS determines a covered individual has a substantiated finding of abuse, or neglect after the department issues a license, or grants employment, the licensee and covered individual has five working days to notify the department. Failure to notify the department may result in revocation of the license (Sec. R432-35-6(6), as renumbered effective January 14, 2002).
If the department determines there exists credible evidence that a covered individual has been arrested or charged with a felony or a misdemeanor that would not be excluded under R432-5(2), the department may act to protect the health and safety of patients and residents in covered health care facilities that the individual may have contact with. The department may revoke or suspend any license or employment if necessary to protect the health and safety of patients and residents in care (Sec. R432-35-7(1), as adopted effective January 14, 2002).
Upon request, the department may permit the covered individual to be employed under supervision until the felony or misdemeanor charge is resolved, if the facility can demonstrate that the individual can work without posing a threat to the safety and health of the resident or patient being served in the licensed health care facility (Sec. R432-35-7(2), as adopted effective January 14, 2002).
If the department denies or revokes a license, or restricts employment based upon the arrest or felony or misdemeanor charge, the department must send a Notice of Agency Action to the licensee and the covered individual notifying them that they may request a hearing with the department (Sec. R432-35-7(3), as adopted effective January 14, 2002).
The department may hold the license or employment denial in abeyance until the arrest or felony or misdemeanor charge is resolved (Sec. R432-35-7(4), as adopted effective January 14, 2002).
The department may impose civil monetary penalties if there has been a failure to comply with this chapter, as follows (Sec. R432-35-8, as adopted effective January 14, 2002):
if significant problems exist that are likely to lead to the harm of an individual resident, the department may impose a civil penalty of $50 to $1,000 per day; and
if significant problems exist that result in actual harm to a resident, the department may impose a civil penalty of $1,050 to $5,000 per day.
An applicant for registration as a health care assistant may not, within five years immediately prior to application, have any substantiated allegations of abuse, neglect, or misappropriation of client property listed against him or her on the certified nurse assistant registry maintained by the State Office of Education or on a similar registry maintained in another state (Sec. 58-31b-302(5), as amended by S. 51, L. 2002).
An applicant for licensure or registration under the Nurse Practice Act (Sec. 58-31b-302(6), as amended by S. 51, L. 2002):
must submit fingerprint cards in a form acceptable to the division at the time the application is filed and must consent to a fingerprint background check by the Utah Bureau of Criminal Identification and the FBI regarding the application, and the division must request the Department of Public Safety to complete an FBI criminal background check for each applicant through the national criminal history system or any successor system; and
if convicted of one or more felonies, must receive an absolute discharge from the sentences for all felony convictions five or more years prior to the date of filing an application for licensure or registration under the Nurse Practice Act.
Any new nurse license or health care assistant registration issued under this section is conditional, pending completion of the criminal background check. If the check discloses the applicant has failed to accurately disclose a criminal history, the license or registration shall be immediately and automatically revoked (Sec. 58-31b-302(8)(a), as amended by S. 51, L. 2002).
Child care facilities.- Each person requesting a residential certificate or to be licensed or to renew a license under this chapter must submit to the department the name and other identifying information, which must include fingerprints, of existing, new, and proposed (Sec. 26-39-107(1)(a), as amended by Ch. 153 (S. 74), L. 1999, effective May 3, 1999):
owners;
directors;
members of the governing body;
employees;
providers of care;
volunteers, except parents of children enrolled in the programs; and
all adults residing in a residence where child care is provided.
A person seeking renewal of a residential certificate or license under this section is not required to submit fingerprints of an individual referred to in items (1)-(6) just above, if (Sec. 26-39-107(1)(b), as amended by Ch. 153 (S. 74), L. 1999, effective May 3, 1999):
the individual has lived in Utah for the last five years;
the individual has previously submitted fingerprints under this section for a national criminal history record check and lived in Utah continuously since that time; or
as of May 3, 1999, the individual had one of the relationships under Sec. 26-39-107(1)(a) above with a child care provider having a residential certificate or licensed under this section and the individual has lived in Utah continuously since that time.
The Utah Division of Criminal Investigation and Technical Services within the Department of Public Safety must process the information required under Sec. 26-39-107(1)(a) above to determine whether the individual has been convicted of any crime. The division must submit fingerprints required under Sec. 26-39-107(1)(a) above to the FBI for a national criminal history record check. The applicant for the license or residential certificate must pay the cost of conducting a record check under this subsection (Sec. 26-39-107(1)(c), as amended by H. 254, L. 2006).
Except as provided in Sec. 26-39-107(4), a licensee under this chapter may not permit a person who has been convicted, has pleaded no contest, or is currently subject to a plea in abeyance or diversion agreement for any felony or misdemeanor, or who has been adjudicated in juvenile court of committing an act which if committed by an adult would be a felony or a misdemeanor, to (Sec. 26-39-107(3), as amended by H. 254, L. 2006):
provide child care;
provide volunteer services for a licensed child care program or a child care program operating under a residential child care certificate;
reside at the premises where child care is provided; or
function as an owner, director, or member of the governing body of a licensed child care program or a child care program operating under a residential child care certificate.
The department may, by rule, exempt the following from the restrictions of Sec. 26-39-107(3) just above (Sec. 26-39-107(4)(a), as amended by H. 254, L. 2006):
specific misdemeanors; and
specific acts adjudicated in juvenile court, which if committed by an adult would be misdemeanors.
In accordance with criteria established by rule, the executive director may consider and exempt individual cases involving misdemeanors, not otherwise exempt under Sec. 26-39-107(4)(a) just above from the restrictions of Sec. 26-39-107(3) above (Sec. 26-39-107(4)(b), as amended by H. 254, L. 2006).
Agencies providing services for children.- Each public or private agency or individual licensed by the department to provide child placing services, youth programs, substitute, foster, or institutionalized care to children must, in order to obtain or renew a license under Sec. 62A-2-108, submit to the department the name and other identifying information, which may include fingerprints, of new and proposed (Sec. 62A-4a-413(1)(a)):
owners;
directors;
members of the governing body;
employees;
providers of care; and
volunteers, except parents of children enrolled in the programs.
The Criminal Investigations and Technical Services Division of the Department of Public Safety will process that information to determine whether the individual has been convicted of any crime (Sec. 62A-4a-413(b)).
If an individual has not lived in Utah for five years, the individual must submit fingerprints for an FBI national criminal history record check. The fingerprints must be submitted to the FBI through the Criminal Investigations and Technical Services Division (Sec. 62A-4a-413(c)).
An owner, director, member of the governing body, employee, provider of care, or volunteer who has a felony conviction may not provide child placing services, foster care, youth programs, substitute care, or institutionalized care for children in facilities or programs licensed by the department (Sec. 62A-4a-413(2)).
The circumstances under which an owner, director, member of the governing body, employee, provider of care, or volunteer who has been convicted of a misdemeanor may provide services described above will be defined by rule (Sec. 62A-4a-413(3)).
Security personnel.- Each applicant for licensure as a contract security company must be of good moral character in that officers, directors, shareholders, partners, proprietors, and responsible management personnel have not been convicted of a felony, a misdemeanor involving moral turpitude, or any other crime that when considered with the duties and responsibilities of a contract security company is considered by the division and the Security Services Licensing Board to indicate that the best interests of the public are not served by granting the applicant a license (Sec. 58-63-302(1)).
Each applicant for licensure as an armed or unarmed private security officer must be of good moral character in that the applicant has not been convicted of a felony, a misdemeanor involving moral turpitude, or any other crime that, when considered with the duties and responsibilities of a private security officer, is considered by the division and the Security Services Licensing Board to indicate that the best interests of the public are not served by granting the applicant a license (Sec. 58-63-302(2) and (3)).
Each applicant for licensure as an alarm response runner must be of good moral character in that the applicant has not been convicted of a felony, a misdemeanor involving moral turpitude, or any other crime that when considered with the duties and responsibilities of an alarm response runner is considered by the division and Security Services Licensing Board to indicate that the best interests of the public are not served by granting the applicant a license (Sec. 58-63-302(4)).
To determine if an applicant meets the qualifications described above, the division must provide an appropriate number of copies of fingerprint cards to the Department of Public Safety with the division's request to (Sec. 58-63-302(6)):
conduct a search of records of the Department of Public Safety for criminal history information relating to each applicant for licensure under this chapter and each applicant's officers, directors, shareholders, partners, proprietors, and responsible management personnel; and
forward to the FBI a fingerprint card of each applicant requiring a check of records of the FBI for criminal history information under this section.
The Department of Public Safety must send to the division (Sec. 58-63-302(7)):
a written record of criminal history, or certification of no criminal history record, as contained in the records of the Department of Public Safety in a timely manner after receipt of a fingerprint card from the division and a request for review of Department of Public Safety records; and
the results of the FBI review concerning an applicant in a timely manner after receipt of information from the FBI.
The division will charge each applicant a fee equal to the cost of performing the records reviews. The division will pay the Department of Public Safety the costs of all records reviews, and the Department of Public Safety will pay the FBI the costs of records reviews under this chapter (Sec. 58-63-302(8)).
Information obtained by the division from the reviews of criminal history records of the Department of Public Safety and the FBI must be used or disseminated by the division only for the purpose of determining if an applicant for licensure under this chapter is qualified (Sec. 58-63-302(9)).
An application for licensure as a contract security company must be accompanied by (R156-63a-302a, as amended effective November 13, 2008):
a certification of criminal record history for the applicant's qualifying agent issued by the Bureau of Criminal Identification, Utah Department of Public Safety, in accordance with Sec. 53-10-108(1)(f)(ii);
two fingerprint cards for the applicant's qualifying agent, and all of the applicant's officers, directors, shareholders owning more than five percent of the stock, partners, proprietors, and responsible management personnel;
a fee established in accordance with Sec. 63J-1-303 equal to the cost of conducting a check of records of the FBI, and Bureau of Criminal Identification, Utah Department of Public Safety, for each of the applicant's qualifying agent, officers, directors, shareholders owning more than five percent of the stock, partners, proprietors, and responsible management personnel; and
a copy of the driver license or Utah identification card issued to the applicant's qualifying agent, officers, directors, shareholders owning more than five percent of the stock, partners, proprietors, and responsible management personnel.
An application for licensure as an armed or unarmed private security officer must be accompanied by (R156-63a-302a, as amended effective , as amended effective November 13, 2008):
a certification of criminal record history for the applicant issued by the Bureau of Criminal Identification, Utah Department of Public Safety, in accordance with Sec. 53-10-108(1)(f)(ii);
two fingerprint cards for the applicant;
a fee established in accordance with Sec. 63J-1-303 equal to the cost of conducting a check of records of: (a) the FBI for the applicant; and (b) the Bureau of Criminal Identification of the Utah Department of Public Safety; and
a copy of the driver license or Utah identification card issued to the applicant.
Applications in change of licensure classification from unarmed to armed private security officer requires only the additional documentation: (a) required firearms training pursuant to Sec. 58-63-604 and (b) an additional criminal history background check pursuant to Sec. 58-63-302 and R156-63a-302a(2) (R156-63A-302a, as amended effective November 13, 2008).
In accordance with Secs. 58-1-203(1)(g) and 58-1-308(3)(b) and R156-1-302, a criminal history background check, to be performed by the Division of Occupational and Professional Licensing, is required for all applications for renewal or reinstatement of licenses for private security officers. In the event a criminal background is disclosed, the Division must evaluate the history to determine appropriate licensure action (R156-63a-305, as amended effective November 13, 2008).
Real estate brokers.- Any new sales agent applicant must submit fingerprint cards in a form acceptable to the Division of Real Estate at the time the license application is filed and must consent to a fingerprint background check by the Utah Bureau of Criminal Identification and the FBI regarding the application. The division must ask the Department of Public Safety to complete an FBI criminal background check for each new sales agent applicant through the national criminal history system (NCIC) or any successor system. The cost of the background check and the fingerprinting must be borne by the applicant (Sec. 61-2-9(1)(d)).
Any new sales agent license issued under this section will be conditional, pending completion of the criminal background check. If the check discloses the applicant has failed to accurately disclose a criminal history, the license will be immediately and automatically revoked (Sec. 61-2-9(1)(e)).
Any person whose conditional license has been revoked as described just above is entitled to a post-revocation hearing to challenge the revocation (Sec. 61-2-9(1)(e)).
Access to information.- With respect to employment, dissemination of information from a criminal history record or warrant of arrest information from division files is limited to (Sec. 53-10-108(1), as amended by Ch. 227 (H. 237), L. 1999, effective July 1, 1999):
criminal justice agencies for employment screening by such agencies;
private security agencies through guidelines established by the commissioner for employment background checks for their own employees and prospective employees;
a qualifying entity for employment background checks for their own employees and persons who have applied for employment with the qualifying entity.
Before requesting information under item (3) just above, a qualifying entity must obtain a signed waiver from the person whose information is requested (Sec. 53-10-108(3)(a), as amended by Ch. 227 (H. 237), L. 1999, effective July 1, 1999).
The waiver must notify the signee (Sec. 53-10-108(3)(b), as amended by Ch. 227 (H. 237), L. 1999, effective July 1, 1999):
that a criminal history background check will be conducted;
who will see the information; and
how the information will be used.
Information received by a qualifying entity for employment background checks for their own employees and applicants may only be (Sec. 53-10-108(3)(c), as amended by Ch. 227 (H. 237), L. 1999, effective July 1, 1999):
available to persons involved in the hiring or background investigation of the employee; and
used for the purpose of assisting in making an employment or promotion decision.
A person who disseminates or uses information obtained from the Criminal Investigations and Technical Services Division as described just above for purposes other than those specified under Sec. 53-10-108(3)(c) above, in addition to any penalties provided under this section, is subject to civil liability (Sec. 53-10-108(3)(d), as amended by Ch. 227 (H. 237), L. 1999, effective July 1, 1999).
A qualifying entity that obtains information for employment background checks for their own employees and applicants must provide the employee or applicant an opportunity to review and respond to any information received (Sec. 53-10-108(3)(e), as amended by Ch. 227 (H. 237), L. 1999, effective July 1, 1999).
The division or its employees are not liable for defamation, invasion of privacy, negligence, or any other claim in connection with the contents of information disseminated for employment background checks as described just above (Sec. 53-10-108(3)(h), as amended by Ch. 227 (H. 237), L. 1999, effective July 1, 1999).
Any criminal history record information obtained from division files may be used only for the purposes for which it was provided and may not be further disseminated (Sec. 53-10-108(4), as amended by Ch. 227 (H. 237), L. 1999, effective July 1, 1999).
If an individual has no prior criminal convictions, criminal history record information contained in the division's computerized criminal history files may not include arrest or disposition data concerning an individual who has been acquitted, his or her charges dismissed, or when no complaint against him or her has been filed (Sec. 53-10-108(5), as amended by Ch. 227 (H. 237), L. 1999, effective July 1, 1999).
Aging and adult services.- The Division of Aging and Adult Services will maintain a data base for reports of disabled or elder adult abuse, neglect, emotional or psychological abuse, or exploitation made pursuant to this part. Information obtained from the data base may be used for (Sec. 62A-3-311.1, as amended by Ch. 276 (S. 194), L. 1999, effective May 3, 1999):
granting or denying licenses or other grants of privilege by the department where identification as a possible adult abuser may be relevant to the privilege in question;
investigation and action by the Division of Occupational and Professional Licensing regarding registration of a health care assistant; and
licensing purposes by the Bureau of Licensing within the Department of Health, as provided for in Sec. 26-21-9.5, in determining whether a person associated with a covered health care facility who provides direct care to disabled or elder adults has a substantiated finding of disabled or elder adult abuse, neglect, or exploitation if identification as a possible perpetrator is relevant to the employment activities of that person.
Before a license or privilege may be denied as described above, the department taking the action must conduct a review and provide the person making application for the license or privilege with notice and an opportunity to be heard (Sec. 62A-3-311.1, as amended by Ch. 276 (S. 194), L. 1999, effective May 3, 1999).
Court records.- With regard to information relating to adult offenders alleged to have committed a sexual offense, a felony or class A misdemeanor drug offense, or an offense against the person under Title 76, Ch. 5, court records are open to inspection by the State Office of Education for the purpose of evaluating whether an individual should be permitted to obtain or retain a license as an educator or serve as an employee or volunteer in a school, with the understanding that the office must provide the individual with an opportunity to respond to any information gathered from its inspection before it makes a decision concerning licensure or employment (Sec. 78-3a-206, as amended by H. 254, L. 2006).
Law enforcement and training academy applicants.- A current or former employer and the director of any training academy an applicant has attended or graduated from shall provide available information in accordance with this section regarding an applicant if the request complies with Sec. 53-14-101(3) below and is submitted by (Sec. 53-14-101(2), as amended by H. 210, L. 2004):
a law enforcement agency regarding an applicant for an employment position; or
the director of a law enforcement training academy for which the applicant requests admission under Sec. 53-6-203.
The request for information shall be (Sec. 53-14-101(3), as amended by H. 210, L. 2004):
in writing;
accompanied by an authorization signed by the applicant and notarized by a notary public, in which the applicant consents to the release of the requested information and releases the employer or training academy providing the information from liability; and
addressed to the employer or director and signed by a sworn officer or other authorized representative of the requesting law enforcement agency or the academy.
The information that a law enforcement agency or the director of an academy may request includes (Sec. 53-14-101(4), as amended by H. 210, L. 2004):
the date on which the applicant began his or her employment and, if applicable, the date on which the employment of the applicant was terminated;
a list of the compensation that the employer provided to the applicant during the course of the employment;
a copy of the application for a position of employment that the applicant submitted to the employer;
a written evaluation of the performance of the applicant;
a record of the attendance of the applicant;
a record of disciplinary action taken against the applicant;
a statement regarding whether the employer would rehire the applicant and, if the employer would not rehire the applicant, the reasons why;
if applicable, a record setting forth the reason that the employment of the applicant was terminated and whether the termination was voluntary or involuntary;
the record of any final action regarding an applicant's peace officer certification that is based on an investigation concerning the applicant's qualification for certification; and
notice of any pending or ongoing investigation regarding the applicant's certification as a peace officer.
In the absence of fraud or malice, an employer or training academy is not subject to any civil liability for any relevant cause of action by releasing employment information requested under this section. An employer or training academy may not provide information pursuant to Sec. 53-14-101(2) above if the disclosure of the information is prohibited pursuant to federal or state law (Sec. 53-14-101(5), as amended by H. 210, L. 2004).
An employer's refusal to disclose information to a law enforcement agency in accordance with this section constitutes grounds for a civil action by the requesting agency for injunctive relief requiring disclosure on the part of an employer (Sec. 53-14-101(6), as amended by H. 210, L. 2004).
A law enforcement agency may use the information received pursuant to this section only to determine the suitability of an applicant for employment. With limited exceptions, a law enforcement agency and a director shall maintain the confidentiality of information received pursuant to this section. A law enforcement agency may share information regarding an applicant that it receives pursuant to this section with another law enforcement agency if (1) the applicant is also an applicant for any employment position with the other law enforcement agency; and (2) the confidentiality of the information is otherwise maintained (Sec. 53-14-101(7), as amended by H. 210, L. 2004).
Public water systems.- A public water utility may (Sec. 11-39-102, as added by Ch. 39 (S. 75), L. 2003, effective May 5, 2003):
require an applicant to submit to a criminal background check as a condition of employment;
periodically require existing employees of the public water utility to submit to a criminal background check if, in the judgment of the public water utility, the employee is in a position to affect the safety or security of the public owned treatment works or public water system or to affect the safety or well-being of patrons of the public water utility; and
require a person seeking access to submit to a criminal background check as a condition of acquiring access.
Each applicant, person seeking access, and existing employee described in item (2) just above shall, if required by the public water utility (Sec. 11-39-102, as added by Ch. 39 (S. 75), L. 2003, effective May 5, 2003):
submit a fingerprint card in a form acceptable to the Criminal Investigation and Technical Services Division of the Department of Public Safety; and
consent to a fingerprint background check by (a) the Utah Bureau of Criminal Identification; and (b) the FBI.
If requested by a public water utility, the division shall request the Department of Public Safety to complete an FBI criminal background check for each applicant, person seeking access, or existing employee through a national criminal history system (Sec. 11-39-102, as added by Ch. 39 (S. 75), L. 2003, effective May 5, 2003).
A public water utility may make an applicant's employment with the public water utility or the access of a person seeking access conditional pending completion of a criminal background check under this section. If a criminal background check discloses that an applicant or a person seeking access failed to disclose accurately a criminal history, the public water utility may deny or, if conditionally given, immediately terminate the applicant's employment or the person's access. If an applicant or person seeking access accurately disclosed the relevant criminal history and the criminal background check discloses that the applicant or person seeking access has been convicted of a crime that indicates a potential risk for the safety of the public water utility's public water system or public owned treatment works or for the safety or well-being of patrons of the public water utility, the public water utility may deny or, if conditionally given, immediately terminate the applicant's employment or the person's access (Sec. 11-39-102, as added by Ch. 39 (S. 75), L. 2003, effective May 5, 2003).
Each public water utility that requests a criminal background check as described just above shall prepare criteria for which criminal activity will preclude employment and shall provide written notice to the person who is the subject of the criminal background check that the background check has been requested (Sec. 11-39-102, as added by Ch. 39 (S. 75), L. 2003, effective May 5, 2003).
If a public water utility requests the division to conduct a criminal background check, the division shall (Sec. 11-39-103, as added by Ch. 39 (S. 75), L. 2003, effective May 5, 2003):
release to the utility the full record of criminal convictions for the person who is the subject of the background check;
if requested by the utility, seek additional information from regional or national criminal data files in conducting the criminal background check;
maintain a separate file of fingerprints submitted under Sec. 11-39-102; and
notify the requesting public water utility when a new entry is made against a person whose fingerprints are held in the file.
Public water utilities may be responsible for paying fees relating to criminal background checks (Sec. 11-39-103, as added by Ch. 39 (S. 75), L. 2003, effective May 5, 2003).
If a public water utility denies or terminates the employment of a person because of information obtained through a criminal background check under this chapter, the public water utility shall (Sec. 11-39-104, as added by Ch. 39 (S. 75), L. 2003, effective May 5, 2003):
notify the person in writing of the reasons for the denial or termination; and
give the person an opportunity to respond to the reasons and to seek review of the denial or termination through administrative procedures established by the public water utility.
Ground transportation service providers.- A city may by ordinance require a ground transportation service provider to submit to a criminal background check as a condition of providing ground transportation service to an airport under the city's authority (Sec. 72-10-602, as added by H. 110, L. 2006).
Each ground transportation service provider, if required to submit a background check as described just above, shall (Sec. 72-10-602, as added by H. 110, L. 2006):
submit a fingerprint card in a form acceptable to the Criminal Investigations and Technical Services Division; and
consent to a fingerprint background check by the Utah Bureau of Criminal Identification and the FBI.
If requested by a city that has adopted an ordinance as described just above, the division shall request the Department of Public Safety to complete an FBI criminal background check through a national criminal history system for each background check requested by a city under this section (Sec. 72-10-602, as added by H. 110, L. 2006).
If a city has adopted an ordinance as described just above, the city may make a ground transportation service provider's access to provide ground transportation service to an airport conditional pending completion of a criminal background check under this section (Sec. 72-10-602, as added by H. 110, L. 2006).
If a criminal background check discloses that a ground transportation service provider failed to disclose accurately a criminal history, the city may deny or, if conditionally given, immediately terminate the ground transportation service provider's right to provide ground transportation service to an airport (Sec. 72-10-602, as added by H. 110, L. 2006).
If a ground transportation service provider accurately disclosed the relevant criminal history and the criminal background check discloses that the ground transportation service provider has been convicted of a crime that indicates a potential risk for the safety or well-being of the patrons or employees of the airport under the city's authority, the city may deny or, if conditionally given, immediately terminate the ground transportation service provider's right to provide ground transportation service to an airport (Sec. 72-10-602, as added by H. 110, L. 2006).
Each city that requests a criminal background check as described just above shall prepare criteria for which criminal activity will preclude ground transportation service to the airport and shall provide written notice to the ground transportation service provider who is the subject of the criminal background check that the background check has been requested (Sec. 72-10-602, as added by H. 110, L. 2006).
If a city denies or terminates the right of a ground transportation service provider to provide ground transportation service to an airport because of information obtained through a criminal background check under this part, the city shall (Sec. 72-10-604, as added by H. 110, L. 2006):
notify the ground transportation service provider in writing of the reasons for the denial or termination; and
give the ground transportation service provider an opportunity to respond to the reasons and to seek review of the denial or termination through administrative procedures established by the city.
If a ground transportation service provider is denied access to provide ground transportation service to an airport, the denial shall not impact the right of another ground transportation service provider who provides ground transportation service for the same business (Sec. 72-10-604, as added by H. 110, L. 2006).
Job reference liability.- Generally, an employer who in good faith provides information about the job performance, professional conduct, or evaluation of a former or current employee to a prospective employer of that employee, at the request of the prospective employer of that employee, may not be held civilly liable for the disclosure or the consequences of providing the information (Sec. 34-42-1).
There is a rebuttable presumption that an employer is acting in good faith when the employer provides information about the job performance, professional conduct, or evaluation of a former or current employee to a prospective employer of that employee, at the request of the prospective employer of that employee (Sec. 34-42-1).
The presumption of good faith is rebuttable only upon showing by clear and convincing evidence that the employer disclosed the information with actual malice or with intent to mislead (Sec. 34-42-1).
School employees.- The administrator of teacher certification in the State Office of Education may provide the appropriate administrator of a public or private school or of an agency outside the state of Utah that is responsible for certification of educators with any recommendation or other information possessed by the office that has significance in evaluating the employment or certification of a current or prospective school employee or certificate holder (Sec. 53A-6-402, as amended by Ch. 160, L. 1996).
If a decision is made to not hire a prospective employee or to take action against a current employee, based upon information provided under this section, the employee must receive notice of the information and be given an opportunity to refute or respond to the information (Sec. 53A-6-402, as amended by Ch. 160, L. 1996).
A person who, in good faith, provides a recommendation or discloses or receives information under this section is exempt from civil and criminal liability relating to that recommendation, receipt or disclosure (Sec. 53A-6-402, as amended by Ch. 160, L. 1996).
Verification of employment eligibility.- (See also WHAT THE EMPLOYER MUST DO, “Identity Documents and Verification (Immigration)” above). State agencies must require all career and career service exempt employees appointed on and after November 7, 1986, as a new hire, rehire, agency transfer or through reciprocity with or assimilation from another career service jurisdiction must provide verifiable documentation of their identity and eligibility for employment in the United States by completing all sections of the Employment Eligibility Certification Form I-9 as required under the Immigration Reform and Control Act of 1986 (Utah ADminCode, Sec. R477-2-7, as amended effective July 1, 2007).
CCH Note.- In August 2007, the voluntary Basic Pilot Program, an Internet-based system operated by DHS in partnership with the SSA that allows participating employers to electronically verify the employment eligibility of their newly hired employees, was renamed “E-Verify.”
<p>CCH Note.— In August 2007, the voluntary Basic Pilot Program, an Internet-based system operated by DHS in partnership with the SSA that allows participating emp</p>