H.
B.
4573
(By Delegates Douglas, Brown, P. White and Manuel)
[Introduced February 23, 1994; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend article two-b, chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section eight-a, relating to establishing a criminal record check system for screening child care workers; restricting the scope of the criminal record check; confidentiality provision related to handling criminal records; protection against civil liability for wrongful discharge; the procedure for requesting criminal record checks; information to be considered by commissioner in determining to whom to direct criminal record checks; and providing a criminal penalty.
Be it enacted by the Legislature of West Virginia:
That article two-b, chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section eight-a, to read as follows:
ARTICLE 2B. DUTIES OF COMMISSIONER OF HUMAN SERVICES FOR CHILD
WELFARE.
§
49-2B-8a.
Duty to perform criminal record check of prospective
employees, volunteers or associates; restricted
scope of criminal record check; confidentiality;
duty to destroy or return records; procedure used
to request criminal record checks; protection from
civil liability; considerations for criminal record
check; criminal penalty.
(a) It is required of any day-care center, facility, family day-care provider, foster family group home, foster family home, group home or group home facility, as such terms are defined by section two of this article, or other child care shelter, institution or facility or juvenile detention facility operating in this state, that prior to considering any person who shall apply for employment or who shall seek to volunteer his or her services therewith in a position wherein such person would have access to or come in contact with, children, which such day-care center, facility, family day-care provider, foster family group home, foster family home, group home, group home facility or other child care shelter, institution or facility or juvenile detention facility serves, such person shall be required to submit to a criminal record check by signing a release, the form for which shall be provided by the commissioner, authorizing any police or governmental agency, department or office maintaining criminal records, to release any such records. It is additionally required that all persons who seek licensure as a foster family group home or foster family home or who are currently acting as foster parents in any such home or who are eighteen years of age or older living in any such home, shall also submit to such criminal record check by signing a release. The commissioner also has discretion to require any person not specifically designated herein, who now owns, operates, is employed by or volunteers his or her services to, or who may later own, operate, be employed by or volunteer his or her services to, any day-care center, facility, family day-care provider, group home, group home facility or other child care shelter, institution or facility or juvenile detention facility to submit to a record check in compliance with this section. Such release shall be restricted in scope in compliance with the following:
(1) The release shall authorize only the release of records of criminal convictions of the person who signed the release, for capital crimes, crimes involving violence, crimes sexual in nature or crimes against or involving children.
(2) The release shall restrict the release of information to the director or other person otherwise in charge of the day-care center, facility, family day-care provider, foster family group home, foster family home, group home, group home facility or other child care shelter, institution or facility or juvenile detention facility and the commissioner and shall direct that any information so released shall be marked "personal and confidential" and be addressed only to such director or person otherwise in charge and the commissioner.
(b) Any release executed hereunder shall plainly set forth in its written terms all applicable restrictions. Such release shall contain in plain, legible form, the person's name whose background is being checked, date of birth, social security number, place of birth, current driver's license number and name of the state in which such driver's license issued. It shall also indicate in chronological order the places of residence of the person for the last fifteen years and whether the person served in any branch of the armed services and, if so, which branch. The release shall include a mailing address for the commissioner and provide a space for the name and address of the requesting day-care center, facility, family day-care provider, foster family group home, foster family home, group home, group home facility or other child care shelter, institution or facility or juvenile detention facility.
(c) In the event any person fails or refuses to sign a release as prescribed hereunder, he or she may not be considered for employment or allowed to work, perform volunteer services or otherwise serve in any capacity at any day-care center, facility, family day-care provider, foster family group home, foster family home, group home, group home facility or other child care shelter, institution, or facility or juvenile detention facility subject to this article.
(d) Any police or governmental agency under the authority of this state or any subdivision thereof who keeps and maintains criminal records or who acts as a clearinghouse for same, shall provide such records free of charge when any request is made hereunder and is accompanied by a full and complete release, in compliance with this section, authorizing the release of such records, signed by the person whose records are being checked.
(e) Any day-care center, facility, family day-care provider, foster family group home, foster family home, group home, group home facility or other child care shelter, institution or facility or juvenile detention facility that receives copies of criminal records of any person under this section shall consider such records in determining whether to hire such person or allow him or her to act as a volunteer. The safety and welfare of the children who are served by the day-care center, facility, family day-care provider, foster family group home, foster family home, group home, group home facility or other child care shelter, institution or facility or juvenile detention facility shall be the foremost consideration in any decision relating to hiring personnel or enlisting volunteers.
(f) Any records received under this section by any day-care center, facility, family day-care provider, foster family group home, foster family home, group home, group home facility or other child care shelter, institution or facility or juvenile detention facility, or by the commissioner, shall be held in the strictest confidence and shall not be disclosed to any other person unless such disclosure is commanded or ordered by the clerk or judge of a court of record or unless such other person is associated with or employed by, such day-care center, facility, family day-care provider, foster family group home, foster family home, group home, group home facility or other child care shelter, institution or facility or juvenile detention facility or with the department and there exists a reasonable basis to disclose same to such other person as the result of that person's employment, volunteer status, supervisory or occupational duties related to child care and supervision:
Provided,
That nothing contained herein will prevent a day-care center, facility, family day-care provider, foster family group home, foster family home, group home, group home facility or other child care shelter, institution or facility or juvenile detention facility or any officer, employee, owner, volunteer or associate thereof, or the commissioner from providing any such criminal record to any police or governmental agency, department or office involved in a criminal investigation involving: (1) A day-care center, facility, family day-care provider, foster family group home, foster family home, group home, group home facility or other child care shelter, institution or facility or juvenile detention facility, its officers, employees, agents, associates or volunteers; or (2) any allegation of child abuse or other criminal activity involving a child, in the event that it reasonably appears that such criminal record bears relevance to such allegation or that it may assist such investigation. In the event criminal records are received under this section and the person to whom they apply is not employed, allowed to volunteer or otherwise associate with or remain on the premises of, such day-care center, facility, family day-care provider, foster family group home, foster family home, group home, group home facility or other child care shelter, institution or facility or juvenile detention facility, such records, within two weeks of receipt thereof, shall be: (1) Destroyed by incineration; or (2) returned by certified mail, return receipt requested, to the police or governmental agency, department or office from which they came.
In cases when a person is hired, allowed to volunteer or continue to work, reside in or otherwise serve in some capacity at such day-care center, facility, family day-care provider, foster family group home, foster family home, group home, group home facility or other child care shelter, institution or facility or juvenile detention facility, such day-care center, facility, family day-care provider, foster family group home, foster family home, group home, group home facility or other child care shelter, institution or facility or juvenile detention facility may retain such records during the tenure of such person's employment, volunteer or residential status or association therewith. In no event may records received under this section be retained for more than one year after termination or resignation from employment, volunteer or residential status or association. At or before the end of any year following the termination or resignation of any such employee, volunteer or associate such records shall be: (1) Destroyed by incineration; or (2) returned by certified mail, return receipt requested, to the police or governmental agency, department or office from which they came. It shall be the duty of the commissioner to insure that any applicable day-care center, facility, family day-care provider, foster family group home, foster family home, group home, group home facility or other child care shelter, institution or facility or juvenile detention facility complies with these provisions requiring the destruction or return of records.
(g) In each instance when a criminal check is required to be performed hereunder, the day-care center, facility, family day-care provider, foster family group home, foster family home, group home, group home facility or other child care shelter, institution or facility or juvenile detention facility involved shall complete the release form as provided hereunder with the information required by this section. Upon completion thereof, the form shall be forwarded to the commissioner who shall forward it to each appropriate police or governmental agency, department, or office to be processed. The commissioner shall request that the police or governmental agency, department or office reply to the day-care center, facility, family day-care provider, foster family group home, foster family home, group home, group home facility or other child care shelter, institution or facility or juvenile detention facility, and to the commissioner:
Provided,
That any employer subject to this section who hires any person, may do so contingent upon the result of a criminal record check required hereunder:
Provided,
however,
That in the event such employer hires any person subject to such criminal record check and thereafter terminates such employee within one month after receiving records showing a criminal conviction for a capital offense, an offense involving violence, an offense sexual in nature or against or involving a child or children, such employer shall not be liable for civil damages in any action for wrongful discharge from employment or other action asserted as the result of such termination from employment.
(h) In determining which police or governmental agencies, departments or offices from which to request a criminal record check, the commissioner shall take into consideration the following:
(1) The residence of the person whose background is being checked;
(2) The state in which the person holds a valid driver's license;
(3) The address, if any, indicated as a residence on the person's driver's license;
(4) The person's places of residence for the last fifteen years;
(5) Which branch of the armed services, if any, in which the person served.
(i) Any person who fails to comply with the provisions contained in this section to perform criminal record checks shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than two hundred nor more than five hundred dollars or be confined in the county or regional jail not more than ninety days.
NOTE: The purpose of this bill is to provide a system to perform criminal background checks for persons seeking to work in the field of child care. The section provides a criminal penalty for noncompliance.
This section is new; therefore, strike-throughs and underscoring have been omitted.
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