Let Employers Check Criminal Records

Section 1. Section 171 of the general business law is amended by adding two new subdivisions 12 and 13 to read as follows:

12. "In-home child care provider" shall mean any person who cares for one or more children in the home of one of such children regardless of the number of hours per week that such child care is provided. A person shall be considered an "in-home child care provider" whether or not such person lives in or outside the home of the child/children for whom he/she is providing care.

13. "In-home child care placement agency" shall mean any employment agency which, for a fee, procures or attempts to procure employment for in-home child care providers whether or not the agency procures or attempts to procure other types of employment or engagements.

§ 2. The general business law is amended by adding a new section 184-b to read as follows:

§ 184-b. Review of criminal history information concerning certain persons available for placement as in-home child care providers. 1. An in-home child placement agency may request and is authorized to receive from the division of criminal justice services criminal history information, as such phrase is defined in paragraph a of subdivision one of section eight hundred forty-five-c of the executive law, concerning persons seeking employment as an in-home child care provider pursuant to such agency.

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD03822-02-7

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2. Access to and the use of such information shall be governed by section eight hundred forty-five-c of the executive law.

§ 3. The mental hygiene law is amended by adding a new section 16.39 to read as follows: § 16.39 Review of criminal history information concerning prospective

employees.

(a) Every provider of services issued an operating certificate pursuant to this article, except a "department facility" as that term is defined in subdivision seven of section 1.03 of this chapter, shall request and is authorized to receive from the division of criminal justice services criminal history information, as such phrase is defined in paragraph a of subdivision one of section eight hundred forty-five-c of the executive law, concerning each prospective employee of such entity who has or will have direct contact or the potential for direct contact with any patient or client of such entity.

(b) Access to and the use of such information shall be governed by section eight hundred forty-five-c of the executive law.

§ 4. The mental hygiene law is amended by adding a new section 31.39 to read as follows: § 31.39 Review of criminal history information concerning prospective

employees.

(a) Every provider of services issued an operating certificate pursuant to this article, except a "department facility" as that term is defined in subdivision seven of section 1.03 of this chapter, shall request and is authorized to receive from the division of criminal justice services criminal history information, as such phrase is defined in paragraph a of subdivision one of section eight hundred forty-five-c of the executive law, concerning each prospective employee of such entity who has or will have direct contact or the potential for direct contact with any patient or client of such entity.

(b) Access to and the use of such information shall be governed by section eight hundred forty-five-c of the executive law.

§ 5. Article 28-D of the public health law is amended by adding a new title 2-A to read as follows:

TITLE II-A

REVIEW OF CRIMINAL HISTORY INFORMATION

CONCERNING CERTAIN

PROSPECTIVE EMPLOYEES OF

NURSING HOMES AND HOME

CARE SERVICES AGENCIES Section 2896-p. Review of criminal history information concerning

certain prospective employees of nursing homes and home

care services agencies.

§ 2896-p. Review of criminal history information concerning certain prospective employees of nursing homes and home care services agencies. 1. Every certified home health agency, licensed home care services agency or long term home health care program certified under article thirty-six of this chapter, residential health care facility licensed under this article, home care services agency exempt from certification or licensure under article thirty-six of this chapter, and hospice as defined in section four thousand two of this chapter shall request and is authorized to receive from the division of criminal justice services criminal history information, as such phrase is defined in paragraph a of subdivision one of section eight hundred forty-five-c of the executive law, concerning each prospective employee of such entity who has or

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will have direct contact or the potential for direct contact with any patient or client of such entity.

2. Access to and the use of such information shall be governed by section eight hundred forty-five-c of the executive law.

§ 6. The social services law is amended by adding a new section 390-k to read as follows:

§ 390-k. Review of criminal history information regarding child care providers. 1. Every child day care provider required to be licensed or registered with the department pursuant to section three hundred ninety of this title shall request and is authorized to receive from the division of criminal justice services criminal history information, as such phrase is defined in paragraph a of subdivision one of section eight hundred forty-five-c of the executive law, concerning each prospective employee of such entity who has or will have direct contact or the potential for direct contact with any child under the care of such provider.

2. A program, school or facility described in subparagraph (ii) of paragraph (a) of subdivision one of section three hundred ninety of this title may request and is authorized to receive from the division of criminal justice services criminal history information, as such phrase is defined in paragraph a of subdivision one of section eight hundred forty-five-c of the executive law, concerning each prospective employee of such entity who has or will have direct contact or the potential for direct contact with any child under the care of such provider.

3. Access to and the use of criminal history information pursuant to subdivisions one and two of this section shall be governed by section eight hundred forty-five-c of the executive law.

§ 7. Subdivision 9 of section 835 of the executive law, as separately amended by chapters 14 and 155 of the laws of 2012, is amended to read as follows:

9. "Qualified agencies" means courts in the unified court system, the administrative board of the judicial conference, probation departments, sheriffs' offices, district attorneys' offices, the state department of corrections and community supervision, the department of correction of any municipality, the financial frauds and consumer protection unit of the state department of financial services, the office of professional medical conduct of the state department of health for the purposes of section two hundred thirty of the public health law, the child protective services unit of a local social services district when conducting an investigation pursuant to subdivision six of section four hundred twenty-four of the social services law, the office of Medicaid inspector general, the temporary state commission of investigation, the commission on criminal history information, police forces and departments having responsibility for enforcement of the general criminal laws of the state, the Onondaga County Center for Forensic Sciences Laboratory when acting within the scope of its law enforcement duties and the division of forensic services of the Nassau county medical examiner's office when acting within the scope of its law enforcement duties.

§ 8. The executive law is amended by adding three new sections 845-c, 845-d and 845-e to read as follows:

§ 845-c. Requests for criminal history information by authorized employers. 1. As used in this section:

a. "Criminal history information" shall mean a record of pending criminal charges, criminal convictions which are not vacated or reversed, and certificates filed pursuant to subdivision two of section seven hundred five of the correction law, and which the division of

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criminal justice services is authorized to maintain pursuant to subdivision six of section eight hundred thirty-seven of this article.

b. "Employer" shall mean a person or entity authorized to request criminal history information pursuant to subdivision two of this section.

c. "Prospective employee" shall mean a person who files an application for employment and the employer has a reasonable expectation to hire such person, and for whom the employer is authorized to request criminal history information pursuant to subdivision two of this section.

d. "Authorized person" shall mean one individual designated by an employer who is authorized to request, receive and review criminal history information pursuant to this section, except that where the number of applications received by an employer is so great that one person cannot reasonably perform the functions of the authorized person, an employer may designate one or more additional persons to serve as an authorized person pursuant to this section.

2. Where an employer is authorized or required to request and review criminal history information pursuant to section one hundred eightyfour-b of the general business law, section 16.39 or 31.39 of the mental hygiene law, section twenty-eight hundred ninety-six-p of the public health law or section three hundred ninety-k of the social services law, such employer shall proceed pursuant to the provisions of this section and in a manner consistent with the provisions of article twenty-three-A of the correction law, subdivisions fifteen and sixteen of section two hundred ninety-six of this chapter and all other applicable laws.

3. a. An employer authorized to request and receive criminal history information pursuant to subdivision two of this section shall designate one authorized person who shall request, receive and review criminal history information on behalf of such employer pursuant to this section. Only such authorized person and the prospective employee to whom such criminal history information relates shall have access to such information; provided, however, that criminal history information received by an employer may be disclosed to other persons who are directly participating in the decision to employ such prospective employee and provided further that such other persons shall also be subject to the confidentiality requirements and all other provisions of this section. Each employer shall specifically identify to the division, in writing, in advance of disclosure, the authorized person and each other such agent or employee of the employer who is permitted to have access to criminal history information pursuant to this section.

b. An employer requesting criminal history information pursuant to this section shall do so by completing a form developed for such purpose by the division. Such form shall include a sworn statement of the authorized person certifying that: (i) the person whose criminal history information is requested has applied to be an employee for whom criminal history information is available by law; (ii) the specific type of prospective employment and, where applicable, prospective employment duties which qualify the employer to review criminal history information; (iii) such criminal history information will be used by the employer solely for purposes authorized by law; and (iv) the employer and its agents and employees are aware of and will abide by the confidentiality requirements and all other provisions of this article.

c. An employer authorized to request criminal history information pursuant to this section may inquire of the prospective employee in the manner authorized by subdivision sixteen of section two hundred ninety-

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six of this chapter. Prior to requesting such information, an employer shall:

(i) inform the prospective employee in writing that the employer is authorized or, where applicable, required to request his or her criminal history information from the division and review such information pursuant to this section;

(ii) inform the prospective employee that he or she has the right to obtain, review and seek correction of his or her criminal history information pursuant to regulations and procedures established by the division;

(iii) obtain the signed, informed consent of the prospective employee on a form supplied by the division of which indicates that such person has:

(a) been informed of the right and procedures necessary to obtain, review and seek correction of his or her criminal history information;

(b) been informed of the reason for the request for his or her criminal history information;

(c) consented to such request for a report; and

(d) supplied on the form a current mailing or home address for the prospective employee. Upon receiving such written consent, the employer shall receive or obtain the fingerprints of such prospective employee pursuant to regulations established by the division.