§ 114-19.6. Criminal history record checks of employees of and applicants for employment with the Department of Health and Human Services, and the Department of Juvenile Justice and Delinquency Preven - North Carolina Statutes

§ 114‑19.6.  Criminal history record checks ofemployees of and applicants for employment with the Department of Health andHuman Services, and the Department of Juvenile Justice and DelinquencyPrevention.

(a)        Definitions. – As used in this section, the term:

(1)        "Covered person" means any of the following:

a.         An applicant for employment or a current employee in aposition in the Department of Juvenile Justice and Delinquency Prevention whoprovides direct care for a client, patient, student, resident or ward of the Department.

b.         A person who supervises positions in the Department ofJuvenile Justice and Delinquency Prevention providing direct care for a client,patient, student, resident or ward of the Department.

c.         An applicant for employment or a current employee in aposition in the Department of Health and Human Services.

d.         An independent contractor or an employee of an independentcontractor that has contracted to provide services to the Department of Healthand Human Services.

e.         A person who has been approved to perform volunteer servicesfor the Department of Health and Human Services.

(2)        "Criminal history" means a State or federalhistory of conviction of a crime, whether a misdemeanor or felony, that bearsupon a covered person's fitness for employment in the Department of Health andHuman Services or the Department of Juvenile Justice and DelinquencyPrevention. The crimes include, but are not limited to, criminal offenses asset forth in any of the following Articles of Chapter 14 of the GeneralStatutes: Article 5, Counterfeiting and Issuing Monetary Substitutes; Article5A, Endangering Executive and Legislative Officers; Article 6, Homicide;Article 7A, Rape and Other Sex Offenses; Article 8, Assaults; Article 10,Kidnapping and Abduction; Article 13, Malicious Injury or Damage by Use ofExplosive or Incendiary Device or Material; Article 14, Burglary and OtherHousebreakings; Article 15, Arson and Other Burnings; Article 16, Larceny;Article 17, Robbery; Article 18, Embezzlement; Article 19, False Pretenses andCheats; Article 19A, Obtaining Property or Services by False or Fraudulent Useof Credit Device or Other Means; Article 19B, Financial Transaction Card CrimeAct; Article 20, Frauds; Article 21, Forgery; Article 26, Offenses Against PublicMorality and Decency; Article 26A, Adult Establishments; Article 27,Prostitution; Article 28, Perjury; Article 29, Bribery; Article 31, Misconductin Public Office; Article 35, Offenses Against the Public Peace; Article 36A,Riots and Civil Disorders; Article 39, Protection of Minors; Article 40,Protection of the Family; Article 59, Public Intoxication; and Article 60,Computer‑Related Crime. The crimes also include possession or sale ofdrugs in violation of the North Carolina Controlled Substances Act, Article 5of Chapter 90 of the General Statutes, and alcohol‑related offenses suchas sale to underage persons in violation of G.S. 18B‑302, or drivingwhile impaired in violation of G.S. 20‑138.1 through G.S. 20‑138.5.

(b)        When requested by the Department of Health and HumanServices or the Department of Juvenile Justice and Delinquency Prevention, theNorth Carolina Department of Justice may provide to the requesting department acovered person's criminal history from the State Repository of CriminalHistories. Such requests shall not be due to a person's age, sex, race, color,national origin, religion, creed, political affiliation, or handicappingcondition as defined by G.S. 168A‑3. For requests for a State criminalhistory record check only, the requesting department shall provide to theDepartment of Justice a form consenting to the check signed by the coveredperson to be checked and any additional information required by the Departmentof Justice. National criminal record checks are authorized for coveredapplicants who have not resided in the State of North Carolina during the pastfive years. For national checks the Department of Health and Human Services orthe Department of Juvenile Justice and Delinquency Prevention shall provide tothe North Carolina Department of Justice the fingerprints of the covered personto be checked, any additional information required by the Department ofJustice, and a form signed by the covered person to be checked consenting tothe check of the criminal record and to the use of fingerprints and otheridentifying information required by the State or National Repositories. Thefingerprints of the individual shall be forwarded to the State Bureau ofInvestigation for a search of the State criminal history record file and theState Bureau of Investigation shall forward a set of fingerprints to theFederal Bureau of Investigation for a national criminal history record check.The Department of Health and Human Services and the Department of JuvenileJustice and Delinquency Prevention shall keep all information pursuant to thissection confidential. The Department of Justice shall charge a reasonable feefor conducting the checks of the criminal history records authorized by thissection.

(c)        All releases of criminal history information to theDepartment of Health and Human Services or the Department of Juvenile Justiceand Delinquency Prevention shall be subject to, and in compliance with, rulesgoverning the dissemination of criminal history record checks as adopted by theNorth Carolina Division of Criminal Information. All of the information eitherdepartment receives through the checking of the criminal history is privilegedinformation and for the exclusive use of that department.

(d)        If the covered person's verified criminal history recordcheck reveals one or more convictions covered under subsection (a) of thissection, then the conviction shall constitute just cause for not selecting theperson for employment, or for dismissing the person from current employment withthe Department of Health and Human Services or the Department of JuvenileJustice and Delinquency Prevention. The conviction shall not automaticallyprohibit employment; however, the following factors shall be considered by theDepartment of Health and Human Services or the Department of Juvenile Justiceand Delinquency Prevention in determining whether employment shall be denied:

(1)        The level and seriousness of the crime;

(2)        The date of the crime;

(3)        The age of the person at the time of the conviction;

(4)        The circumstances surrounding the commission of the crime,if known;

(5)        The nexus between the criminal conduct of the person and jobduties of the person;

(6)        The prison, jail, probation, parole, rehabilitation, andemployment records of the person since the date the crime was committed; and

(7)        The subsequent commission by the person of a crime listed insubsection (a) of this section.

(e)        The Department of Health and Human Services and theDepartment of Juvenile Justice and Delinquency Prevention may deny employmentto or dismiss a covered person who refuses to consent to a criminal historyrecord check or use of fingerprints or other identifying information requiredby the State or National Repositories of Criminal Histories. Any such refusalshall constitute just cause for the employment denial or the dismissal fromemployment.

(f)         The Department of Health and Human Services and theDepartment of Juvenile Justice and Delinquency Prevention may extend aconditional offer of employment pending the results of a criminal historyrecord check authorized by this section. (1997‑260, s. 1; 1997‑443, s. 11A.118(b); 1998‑202,s. 4(f); 2000‑137, s. 4(h); 2003‑214, s. 1(2); 2005‑114, s.4.)