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 DEL conduct background checks on all employees in covered positions and individuals being considered for a covered position?, 357-19-184 Besides the DEL, 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, 357-19-187, and 357-19-191?, 357-19-186 For purposes of WAC 357-19-183, what information is considered in a background check conducted by DEL 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 individual being considered for a covered position authorize the director of the DEL or designee to conduct a background check and what happens if the employee or individual being considered for a covered position does not provide authorization?, 357-19-188 What happens when a permanent DEL employee is disqualified because of a background check?, 357-19-189 What are the responsibilities of the director of the DEL in carrying out the requirement to conduct background checks?, and 357-19-191 Does a permanent employee of 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?

     Hearing Location(s): Department of Personnel, 2828 Capitol Boulevard, Tumwater, WA, on August 16, 2007, at 8:30 a.m.

     Date of Intended Adoption: August 16, 2007.

     Submit Written Comments to: Connie Goff, Department of Personnel, P.O. Box 47500, e-mail connieg@dop.wa.gov, fax (360) 586-4694, by August 10, 2007. FOR DOP TRACKING PURPOSES PLEASE NOTE ON SUBMITTED COMMENTS "FORMAL COMMENT."

     Assistance for Persons with Disabilities: Contact department of personnel by August 10, 2007, TTY (360) 753-4107 or (360) 586-8260.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This proposal is due to ESSB 5774 which requires the department of personnel (DOP) to adopt rules in cooperation with the department of early learning (DEL) for background investigations for current employees and persons being considered for positions who will or may have unsupervised access to children. This bill also removed the requirement for DOP to have background check rules for the department of social and health services (DSHS).

     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: The purpose of these amendments is to meet the requirements of ESSB 5774 which passed during the 2007 legislative session.

     Name of Proponent: Department of personnel, governmental.

     Name of Agency Personnel Responsible for Drafting: Connie Goff, 521 Capitol Way South, Olympia, WA, (360) 664-6250; 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.

June 28, 2007

Eva N. Santos

Director

     (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.]

     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 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 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.]

     (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.]

[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.

     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 357-19-189   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.]

     (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.]

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