WSR 07-13-066

EMERGENCY RULES

DEPARTMENT OF PERSONNEL


[ Filed June 18, 2007, 11:35 a.m. , effective July 22, 2007 ]


Effective Date of Rule: July 22, 2007.

Purpose: These changes are a result of the passage of ESSB 5774. This bill removes the requirement for the department of personnel (DOP) to adopt background check rules for the department of social and health services and requires DOP to adopt background check rules for the department of early learning.

Citation of Existing Rules Affected by this Order: Amending WAC 357-19-183, 357-19-184, 357-19-185, 357-19-186, 357-19-187, 357-19-188, 357-19-189, and 357-19-191.

Statutory Authority for Adoption: Chapter 41.06 RCW.

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

Reasons for this Finding: The department of early learning would not be able to hire employees to fill positions that have unsupervised access to children until these rules are in place. The effective date of ESSB [5774] is July 22, 2007.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 8, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 8, Repealed 0.

Date Adopted: June 14, 2007.

Eva N. Santos

Director


AMENDATORY SECTION(Amending WSR 05-12-097, filed 5/27/05, effective 7/1/05)

WAC 357-19-183   Must ((DSHS)) DEL conduct background checks on all employees in covered positions and ((applicants under final consideration)) individuals being considered for a covered position?   (1) The ((secretary of the department of social and health services (DSHS))) director of the Department of Early Learning (DEL) 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)) individuals being considered for a covered position.

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

(a) Current employees in covered positions.

(((a))) (b) Any employee ((seeking)) considered for a covered position because of a layoff, reallocation, transfer, promotion or demotion, or other actions that result in the employee being in a covered position.

(c) Any individual being considered for positions which are covered positions. ((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.)) Considered for positions includes decisions about:

(a) Initial hiring, layoffs, reallocations, transfers, promotions, demotions, or

(b) Other decisions that result in an individual being in a position that will or may have unsupervised access to children as an employee, an intern, or a volunteer.

[Statutory Authority: Chapter 41.06 RCW. 05-12-097, 357-19-183, filed 5/27/05, effective 7/1/05.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.
AMENDATORY SECTION(Amending WSR 05-12-097, filed 5/27/05, effective 7/1/05)

WAC 357-19-184   Besides the ((department of social and health services)) DEL, 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.

[Statutory Authority: Chapter 41.06 RCW. 05-12-097, 357-19-184, filed 5/27/05, effective 7/1/05.]


AMENDATORY SECTION(Amending WSR 05-12-097, filed 5/27/05, effective 7/1/05)

WAC 357-19-185   What is a covered position for purposes of WAC 357-19-183, WAC 357-19-187, and WAC 357-19-191?   For purposes of WAC 357-19-183, WAC 357-19-187 and WAC 357-19-191 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)).

[Statutory Authority: Chapter 41.06 RCW. 05-12-097, 357-19-185, filed 5/27/05, effective 7/1/05.]

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.
AMENDATORY SECTION(Amending WSR 05-12-097, filed 5/27/05, effective 7/1/05)

WAC 357-19-186   For purposes of WAC 357-19-183, what information is considered in a background check conducted by ((DSHS)) DEL and what are the results of the background check used for?   (1) The background check information considered by the ((secretary of the DSHS)) director of the DEL 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.

[Statutory Authority: Chapter 41.06 RCW. 05-12-097, 357-19-186, filed 5/27/05, effective 7/1/05.]


AMENDATORY SECTION(Amending WSR 05-12-097, filed 5/27/05, effective 7/1/05)

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

Failure to authorize the ((secretary of the DSHS)) director of the DEL or designee to conduct a background check disqualifies an employee or ((applicant)) individual from consideration for any covered position including their current covered position.

[Statutory Authority: Chapter 41.06 RCW. 05-12-097, 357-19-187, filed 5/27/05, effective 7/1/05.]

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.
AMENDATORY SECTION(Amending WSR 05-12-097, filed 5/27/05, effective 7/1/05)

WAC 357-19-188   What happens when a permanent ((DSHS)) DEL 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) Nondisciplinary 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 thirty 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 noncovered position will occur over a period of thirty calendar days.

[Statutory Authority: Chapter 41.06 RCW. 05-12-097, 357-19-188, filed 5/27/05, effective 7/1/05.]


AMENDATORY SECTION(Amending WSR 05-12-097, filed 5/27/05, effective 7/1/05)

WAC 357-19-189   What are the responsibilities of the ((secretary of the DSHS)) director of the DEL 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)) director of the DEL or designee must:

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

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

(((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)) employee and/or individual being considered for covered positions. 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.

[Statutory Authority: Chapter 41.06 RCW. 05-12-097, 357-19-189, filed 5/27/05, effective 7/1/05.]


AMENDATORY SECTION(Amending WSR 05-12-097, filed 5/27/05, effective 7/1/05)

WAC 357-19-191   Does a permanent employee of ((DSHS)) DEL 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)) DEL 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)) director of the DEL 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.

[Statutory Authority: Chapter 41.06 RCW. 05-12-097, 357-19-191, filed 5/27/05, effective 7/1/05.]

Washington State Code Reviser's Office