§ 131E-265. Criminal history record checks required for certain applicants for employment.
Article 16.
Miscellaneous Provisions.
§ 131E‑265. Criminalhistory record checks required for certain applicants for employment.
(a) Requirement;Nursing Home or Home Care Agency. An offer of employment by a nursing homelicensed under this Chapter to an applicant to fill a position that does notrequire the applicant to have an occupational license is conditioned on consentto a criminal history record check of the applicant. If the applicant has beena resident of this State for less than five years, then the offer of employmentis conditioned on consent to a State and national criminal history record checkof the applicant. The national criminal history record check shall include acheck of the applicant's fingerprints. If the applicant has been a resident ofthis State for five years or more, then the offer is conditioned on consent toa State criminal history record check of the applicant. An offer of employmentby a home care agency licensed under this Chapter to an applicant to fill aposition that requires entering the patient's home is conditioned on consent toa criminal history record check of the applicant. In addition, employmentstatus change of a current employee of a home care agency licensed under thisChapter from a position that does not require entering the patient's home to aposition that requires entering the patient's home shall be conditioned onconsent to a criminal history record check of that current employee. If theapplicant for employment or if the current employee who is changing employmentstatus has been a resident of this State for less than five years, then theoffer of employment or change in employment status is conditioned on consent toa State and national criminal history record check. The national criminalhistory record check shall include a check of the applicant's or currentemployee's fingerprints. If the applicant or current employee has been aresident of this State for five years or more, then the offer is conditioned onconsent to a State criminal history record check of the applicant or currentemployee applying for a change in employment status. A nursing home or a homecare agency shall not employ an applicant who refuses to consent to a criminalhistory record check required by this section. In addition, a home care agencyshall not change a current employee's employment status from a position thatdoes not require entering the patient's home to a position that requiresentering the patient's home who refuses to consent to a criminal history recordcheck required by this section. Within five business days of making theconditional offer of employment, a nursing home or home care agency shallsubmit a request to the Department of Justice under G.S. 114.19.10 to conduct aState or national criminal history record check required by this section, orshall submit a request to a private entity to conduct a State criminal historyrecord check required by this section. Notwithstanding G.S. 114‑19.10,the Department of Justice shall return the results of national criminal historyrecord checks for employment positions not covered by Public Law 105‑277to the Department of Health and Human Services, Criminal Records Check Unit.Within five business days of receipt of the national criminal history of theperson, the Department of Health and Human Services, Criminal Records CheckUnit, shall notify the nursing home or home care agency as to whether theinformation received may affect the employability of the applicant. In no caseshall the results of the national criminal history record check be shared withthe nursing home or home care agency. Nursing homes and home care agenciesshall make available upon request verification that a criminal history checkhas been completed on any staff covered by this section. All criminal historyinformation received by the home or agency is confidential and may not bedisclosed, except to the applicant as provided in subsection (b) of thissection.
(a1) Requirement;Contract Agency of Nursing Home or Home Care Agency. An offer of employmentby a contract agency of a nursing home or home care agency licensed under thisChapter to an applicant to fill a position that does not require the applicantto have an occupational license is conditioned upon consent to a criminalhistory record check of the applicant. If the applicant has been a resident ofthis State for less than five years, then the offer of employment isconditioned on consent to a State and national criminal history record check ofthe applicant. The national criminal history record check shall include a checkof the applicant's fingerprints. If the applicant has been a resident of thisState for five years or more, then the offer is conditioned on consent to aState criminal history record check of the applicant. A contract agency of anursing home or home care agency shall not employ an applicant who refuses toconsent to a criminal history record check required by this section. Withinfive business days of making the conditional offer of employment, a contractagency of a nursing home or home care agency shall submit a request to theDepartment of Justice under G.S. 114‑19.10 to conduct a State or nationalcriminal history record check required by this section, or shall submit arequest to a private entity to conduct a State criminal history record checkrequired by this section. Notwithstanding G.S. 114‑19.10, the Departmentof Justice shall return the results of national criminal history record checksfor employment positions not covered by Public Law 105‑277 to theDepartment of Health and Human Services, Criminal Records Check Unit. Withinfive business days of receipt of the national criminal history of the person,the Department of Health and Human Services, Criminal Records Check Unit, shallnotify the contract agency of the nursing home or home care agency as towhether the information received may affect the employability of the applicant.In no case shall the results of the national criminal history record check beshared with the contract agency of the nursing home or home care agency.Contract agencies of nursing homes and home care agencies shall make availableupon request verification that a criminal history check has been completed onany staff covered by this section. All criminal history information received bythe contract agency is confidential and may not be disclosed, except to theapplicant as provided by subsection (b) of this section.
(b) Action. If anapplicant's criminal history record check reveals one or more convictions of arelevant offense, the nursing home or home care agency, or the contract agencyof a nursing home or home care agency, shall consider all of the followingfactors in determining whether to hire the applicant:
(1) The level andseriousness of the crime.
(2) The date of thecrime.
(3) The age of theperson at the time of the conviction.
(4) The circumstancessurrounding the commission of the crime, if known.
(5) The nexus betweenthe criminal conduct of the person and the job duties of the position to befilled.
(6) The prison, jail,probation, parole, rehabilitation, and employment records of the person sincethe date the crime was committed.
(7) The subsequentcommission by the person of a relevant offense.
The fact of conviction of arelevant offense alone shall not be a bar to employment; however, the listedfactors shall be considered by the nursing home or home care agency, or thecontract agency of the nursing home or home care agency. If a nursing home,home care agency, or contract agency of a nursing home or home care agency disqualifiesan applicant after consideration of the relevant factors, then the nursinghome, home care agency, or contract agency may disclose information containedin the criminal history record check that is relevant to the disqualification,but may not provide a copy of the criminal history record check to theapplicant.
(c) Limited Immunity. An entity and an officer or employee of an entity that, in good faith, complieswith this section is not liable for the failure of the entity to employ anindividual on the basis of information provided in the criminal history recordcheck of the individual.
(d) Relevant Offense. As used in this section, the term "relevant offense" has the samemeaning as in G.S. 131D‑40.
(e) Penalty forFurnishing False Information. Any applicant for employment who willfullyfurnishes, supplies, or otherwise gives false information on an employmentapplication that is the basis for a criminal history record check under thissection shall be guilty of a Class A1 misdemeanor.
(f) ConditionalEmployment. A nursing home or home care agency may employ an applicantconditionally prior to obtaining the results of a criminal history record checkregarding the applicant if both of the following requirements are met:
(1) The nursing home orhome care agency shall not employ an applicant prior to obtaining theapplicant's consent for a criminal history record check as required insubsection (a) of this section or the completed fingerprint cards as requiredin G.S. 114‑19.10.
(2) The nursing home orhome care agency shall submit the request for a criminal history record checknot later than five business days after the individual begins conditionalemployment.
(g) Immunity FromLiability. An entity and officers and employees of an entity shall be immunefrom civil liability for failure to check an employee's history of criminaloffenses if the employee's criminal history record check is requested andreceived in compliance with this section.
(h) For purposes ofthis section, the term "private entity" means a business regularlyengaged in conducting criminal history record checks utilizing public recordsobtained from a State agency. (1995 (Reg. Sess., 1996), c. 606, s. 3; 1997‑125,s. 2; 1997‑140, s. 4; 2000‑154, ss. 3(a),(b); 2004‑124, s.10.19D(a); 2005‑4, ss. 8, 9; 2007‑444, s. 3.2.)