WSR 05-12-097

PERMANENT RULES

DEPARTMENT OF PERSONNEL


[ Filed May 27, 2005, 11:30 a.m. , effective July 1, 2005 ]


Purpose: WAC 357-19-184 addresses background checks for state employees or applicants. WAC 357-19-183, 357-19-185, 357-19-186, 357-19-187, 357-19-188, 357-19-189 and 357-19-191 all address background checks for DSHS employees and applicants.

Statutory Authority for Adoption: Chapter 41.06 RCW.

Adopted under notice filed as WSR 05-09-107 on April 20, 2005.

Changes Other than Editing from Proposed to Adopted Version: WAC 357-19-183, the word "candidate" has been changed to "applicant" and also language in WAC 357-19-183(3) has been changed to reflect "applicant" instead of "candidate."

WAC 357-19-186, after consultation with stakeholders language was removed from this section and the rule was simplified.

WAC 357-19-187, the word "candidate" has been changed to "applicant."

WAC 357-19-188, subsection (3) was added to this rule.

WAC 357-19-189, subsection (2) was added to this rule.

WAC 357-19-191, "applicant or candidate" was changed to "permanent employee" and for clarification purposes subsections (1) through (7) were added.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 8, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 8, Amended 0, Repealed 0.

Date Adopted: May 24, 2005.

Eva N. Santos

Director


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

(2) The requirement for background checks must 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.

(3) Applicant means any person who has applied for work or serves in a covered position, including current employees requesting transfer, promotion, demotion, or otherwise requesting a move to a covered position.

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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 conviction records, pending charges, and disciplinary board final decisions.

(2) The results of the background check must be used solely for the purpose of determining the character, suitability and competence of the applicant and/or employee.

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NEW SECTION
WAC 357-19-187   For purposes of WAC 357-19-183, must an employee and/or applicant authorize the secretary of the department of social and health services or designee to conduct a background check and what happens if the employee or applicant does not provide authorization?   An employee and/or applicant applying for or being considered to remain in a covered position must authorize the secretary of the department of social and health services or designee to conduct a background check which may include fingerprinting.

Failure to authorize the secretary of the DSHS or designee to conduct a background check disqualifies an employee 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 in no specific order:

(a) Voluntary demotion;

(b) Job restructuring;

(c) Voluntary resignation;

(d) Job reassignment;

(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.

(3) Before a permanent employee may be separated due to a background check disqualification, the search for a non-covered position will occur over a period of thirty (30) calendar days.

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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?   (1) In order to implement the requirements of WAC 357-19-183, the secretary of the DSHS or designee must:

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

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

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

(2) Information contained in background checks must be used solely for the purpose of determining the character, suitability and competence of the applicant 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. However, results of a background check may be discoverable pursuant to the rules of civil discovery, or subject to disclosure pursuant to a public records request.

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NEW SECTION
WAC 357-19-191   Does a permanent employee of DSHS who is disqualified from a covered position as a result of a background check have the right to request a review of the disqualification?   A permanent employee of DSHS who is disqualified from a covered position as a result of a background check has the right to present to the secretary of the DSHS or designee evidence that mitigates convictions, pending charges, and disciplinary board final decisions including, but not limited to:

(1) The employee's background check authorization and disclosure form;

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

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

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

(5) The nature and number of previous offenses;

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

(7) The relationship between the potentially disqualifying event and the duties of the employee.

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Washington State Code Reviser's Office