WSR 05-08-126

PROPOSED RULES

DEPARTMENT OF PERSONNEL


[ Filed April 6, 2005, 9:30 a.m. ]

Original Notice.

Exempt from preproposal statement of inquiry under RCW 34.05.310(4).

Title of Rule and Other Identifying Information: WAC 357-19-183 Must DSHS conduct background checks on all employees in covered positions and candidates under final consideration for a covered position?, 357-19-184 Besides the Department of Social and Health Services, may other employers conduct background checks on applicants or employees and what is the requirement to notify applicants or employees?, 357-19-185 What is a covered position for purposes of WAC 357-19-183?, 357-19-186 For purposes of WAC 357-19-183, what information is considered in a background check conducted by DSHS and what are the results of the background check used for?, 357-19-187 For purposes of WAC 357-19-183, must an employee and/or candidate authorize the secretary of the department of social and health services to conduct a background check and what happens if the employee or candidate doesn't provide authorization?, 357-19-188 What happens when a permanent DSHS employee is disqualified because of a background check?, 357-19-189 What are the responsibilities of the secretary of the DSHS in carrying out the requirement to conduct background checks?, and 357-19-191 May an applicant or candidate for a covered position who is denied employment due to a disqualifying background check request a review of the disqualification?

Hearing Location(s): LeeAnn Miller Conference Center, 4224 6th Avenue S.E., Building #1, Lacey, WA, on May 12, 2005, at 10:00 a.m.

Date of Intended Adoption: May 12, 2005.

Submit Written Comments to: Sharon Whitehead, Department of Personnel, P.O. Box 47500, FOR DOP TRACKING PURPOSES PLEASE NOTE ON SUBMITTED COMMENTS "FORMAL COMMENT," fax (360) 586-4694, by May 6, 2005.

Assistance for Persons with Disabilities: Contact Department of Personnel by May 6, 2005, TTY (360) 753-4107 or (360) 586-8260.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rules address background checks for state employees.

Statutory Authority for Adoption: Chapter 41.06 RCW.

Statute Being Implemented: RCW 41.06.150.

Rule is not necessitated by federal law, federal or state court decision.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: Due to the passage of SHB 1268 the director of the Department of Personnel has rule-making authority regarding background checks [of] classified state employees. The proposed rules implement this provision of the Personnel System Reform Act.

Name of Proponent: Department of Personnel, governmental.

Name of Agency Personnel Responsible for Drafting: Sharon Whitehead, 521 Capitol Way South, Olympia, WA, (360) 664-6348; Implementation and Enforcement: Department of Personnel.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Not required.

A cost-benefit analysis is not required under RCW 34.05.328.

April 5, 2005

Eva Santos

Director


NEW SECTION
WAC 357-19-183   Must DSHS conduct background checks on all employees in covered positions and candidates under final consideration for a covered position?   (1) The secretary of the Department of Social and Health Services (DSHS) must conduct background checks, which may include fingerprinting as authorized by statute, on all employees in covered positions and candidates under final consideration for a covered position.

(2) The requirement for background checks shall include the following:

(a) Any employee seeking a covered position because of a layoff, reallocation, transfer, promotion or demotion.

(b) Any applicant prior to appointment into a covered position, except when appointment is made on a conditional basis in accordance with agency procedures authorized by WAC 357-19-189(2).

(3) A background check will be conducted on the final preferred candidate prior to appointment.

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NEW SECTION
WAC 357-19-184   Besides the department of social and health services, may other employers conduct background checks on applicants or employees and what is the requirement to notify applicants or employees?   (1) Employers may conduct background checks on applicants and/or employees if required by state or federal law, or if the employer identifies the need for a background check to verify that the applicant or employee satisfies the position requirements.

(2) Employers who conduct background checks must develop procedures regarding how and when background checks will be conducted. The procedures must include notification to applicants and/or employees if a background check is required.

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NEW SECTION
WAC 357-19-185   What is a covered position for purposes of WAC 357-19-183?   For purposes of WAC 357-19-183, a covered position is one in which a person will or may have unsupervised access to children, vulnerable adults, or individuals with mental illness or developmental disabilities.

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NEW SECTION
WAC 357-19-186   For purposes of WAC 357-19-183, what information is considered in a background check conducted by DSHS and what are the results of the background check used for?   (1) The background check information considered by the secretary of the DSHS will include, but not be limited to:

(a) Conviction records, pending charges, disciplinary board final decisions, findings of abuse, neglect, exploitation or abandonment, denial, suspension, revocation or provider license, restrictions to license, and/or DSHS contract termination.

(b) Evidence that substantiates or mitigates convictions, pending charges, and disciplinary board final decisions including, but not limited to:

(i) The employee or applicant's background check authorization and disclosure form;

(ii) The employee or applicant's age at the time of conviction, charge, or disciplinary board final decision;

(iii) The nature and severity of the conviction, charge, or disciplinary board final decision;

(iv) The length of time since the conviction, charge, or disciplinary board final decision;

(v) The nature and number of previous offenses;

(vi) Vulnerability of the child, vulnerable adult, or individual with mental illness or developmental disabilities to which the employee or applicant will or may have unsupervised access; and

(vii) The relationship between the potentially disqualifying event and the duties of the employee or applicant.

(c) Information contained in background checks must be used solely for the purpose of determining the character, suitability and competence of the candidate and/or employee. The information must not be disseminated further. Dissemination and use of such information is governed by the criminal records privacy act, chapter 10.97 RCW. Unlawful dissemination of information protected by the criminal records privacy act is a criminal offense and may result in prosecution and/or disciplinary action as provided in chapter 357-40 WAC.

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Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 357-19-187   For purposes of WAC 357-19-183, must an employee and/or candidate authorize the secretary of the department of social and health services to conduct a background check and what happens if the employee or candidate doesn't provide authorization?   An employee and/or candidate must authorize the secretary of the department of social and health services to conduct a background check which may include fingerprinting.

Failure to authorize the secretary of the DSHS to conduct a background check disqualifies an employee, candidate, or applicant from consideration for any covered position including their current covered position.

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NEW SECTION
WAC 357-19-188   What happens when a permanent DSHS employee is disqualified because of a background check?   (1) A permanent employee with a background check disqualification may be subject to any of the following actions:

(a) Job restructuring;

(b) Job reassignment;

(c) Voluntary demotion;

(d) Voluntary resignation;

(e) Non-disciplinary separation in accordance with WAC 357-46-195; or

(f) Disciplinary action in accordance with WAC 357-40-010.

(2) An appointing authority may use the following interim measures while exploring the availability of actions (not to exceed 30 calendar days except in cases where there are investigations of pending charges):

(a) Voluntary use of accrued vacation, exchange, and/or compensatory time;

(b) Authorized leave without pay, if there is no paid leave available, or if the employee chooses not to use paid leave; and/or

(c) Reassignment to another work location.

(d) When considering the above actions, the agency will consider the least restrictive means necessary to prevent unsupervised access.

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NEW SECTION
WAC 357-19-189   What are the responsibilities of the secretary of the DSHS in carrying out the requirement to conduct background checks?   In order to implement the requirements of WAC 357-19-183, the secretary of the DSHS must:

(1) Notify employees and applicants that a background check is required for covered positions;

(2) Develop procedures specifying when employees and applicants may be hired on a conditional basis pending the results of a background check; and

(3) Develop policies and procedures pertaining to background checks.

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NEW SECTION
WAC 357-19-191   May an applicant or candidate for a covered position who is denied employment due to a disqualifying background check request a review of the disqualification?   An applicant or candidate for a covered position who is denied employment due to a disqualifying background check may request review by the appointing authority.

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Washington State Code Reviser's Office