Ala. Admin. Code r. 660-5-46-.05
Current through Register Vol. 43, No. 1, October 31, 2024
Section 660-5-46-.05 - Responsibilities Of Employers And Agencies(1) Every employer, child care facility, adult care facility, the Department of Human Resources, and child placing agency required to obtain a criminal history background information check pursuant to this chapter shall obtain, prior to or upon the date of employment, or issuance of a license or approval or renewal thereof, and maintain in the agency or personnel file, a request with written consent for the criminal history background information check and a statement signed by the applicant, volunteer, or employee indicating whether he or she has ever been convicted of a crime, and if so, fully disclosing all convictions. The statement shall include a notice and questionnaire the same as or similar to the following: (a) MANDATORY CRIMINAL HISTORY CHECK NOTICE: Alabama law requires that a criminal history background information check be conducted on all persons who hold a license or work in a Department of Human Resources licensed child care or adult care facility, a foster or adoptive home approved by the Department of Human Resources, or a licensed child placing agency, including all officers and agents of the entity. You are required to provide full, complete, and accurate information on your criminal conviction history upon application for a license or employment. This information shall be used to determine your suitability to provide care to children, the elderly, or disabled individuals. Unless a criminal history background information check report and suitability determination have previously been obtained, you must complete a written request and consent for a criminal history background information check with fingerprints at the time of application for employment. Refusal to complete these documents or providing false information shall result in refusal of employment, approval, or licensure. The term conviction includes a determination of guilt by a trial, by a plea of guilty, or a plea of nolo contendere. You are required to notify your employer, licensing agency, or entity where you are performing volunteer work of any criminal conviction occurring subsequent to the date of completion of this notice. Any individual determined to have submitted false information shall be referred to the district attorney or law enforcement for investigation and possible prosecution. An individual who intentionally falsifies or provides any misleading information on the statement is guilty of a Class A misdemeanor, punishable by a fine of not more than two thousand dollars ($2,000) and imprisonment for not more than one year.(2) Convictions for any of the following crimes shall make an individual unsuitable for employment, volunteer work, approval, or licensure: (a) Murder, manslaughter, or criminally negligent homicide.(b) A sex crime. "A sex crime includes the following:1. Enticing a child to enter a vehicle, room, house, office, or any other space for immoral purposes, as proscribed by Section 13A-6-69 of the Code of Ala. 1975.2. Incest, when the offender is an adult and the victim is a minor, as proscribed by Section 13A-13-3 of the Code of Ala. 1975.3. Kidnapping of a minor, except by a parent, in the first or second degree, as proscribed by Section 13A-6-43 or Section 13A-6-44 of the Code of Ala. 1975.4. Promoting prostitution in the first or second degree, as proscribed by Section 13A-12-111 or Section 13A-12-112 of the Code of Ala. 1975.5. Rape in the first or second degree, as proscribed by Section 13A-6-61 or Section 13A-6-62 of the Code of Ala. 1975.6. Sexual misconduct, as proscribed by Section 13A-6-65 of the Code of Ala. 1975.7. Sexual torture, as proscribed by Section 13A-6-65 of the Code of Ala. 1975.8. Sexual abuse in the first or second degree, as proscribed by Section 13A-6-66 or Section 13A-6-67 of the Code of Ala. 1975.9. Sodomy in the first or second degree, as proscribed by Section 13A-6-63 or Section 13A-6-64 of the Code of Ala. 1975.10. Soliciting a child by computer for the purposes of committing a sexual act and transmittal of obscene material to a child by computer as proscribed by Sections 13A-6-110 and 13A-6-111 of the Code of Ala. 1975.11. Violation of the Alabama Child Pornography Act, as proscribed by Section 13A-12-191, 13A-12-192, 13A-12-196, or 13A-12-197 of the Code of Ala. 1975.12. Any solicitation, attempt, or conspiracy to commit any of the offenses listed in paragraphs (i) to (x), inclusive.13. A crime listed in the Community Notification Act, Chapter 20 of Title 15 of the Code of Ala. 1975.(c) A crime that involves the physical or mental injury or maltreatment of a child, the elderly, or an individual with disabilities.(d) A crime committed against a child.(e) A crime involving the sale or distribution of a controlled substance.(f) Conviction for a crime listed in the federal Adoption and Safe Families Act as prohibiting a person from being a foster parent or adoptive parent shall be deemed to make the convicted person unsuitable for employment, volunteer work, approval, or licensure as a foster parent or adoptive parent.(g) Conviction for a violation or attempted violation of an offense committed outside the State of Alabama or under federal law is a sex crime or any other crime listed in this notice if the offense would be a crime listed in this notice in Alabama. (i) The Adoption and Safe Families Act( 42 U.S.C. Section 67(a)(20)) provides that convictions which disqualify a person from being a foster or adoptive parent include the following: (I) a felony conviction for child abuse or neglect, for spousal abuse, for a crime against children(including child pornography), or for a crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault or battery; or(II) a felony conviction for physical assault, battery, or a drug-related offense committed within the past five years from the date of application.(ii) For the purposes of this section "crime involving violence" includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as "crimes involving violence" if (A) the offense has an element the use, attempted use or threatened use of physical force against the person of another, or (B) the conduct set forth(i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives(including any explosive material or destructive device) or, by Its nature, presented a serious potential risk of physical injury to another. "Crime involving violence" also includes the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.(3) CRIMINAL HISTORY STATEMENT (a) Have you ever had a suitability determination made by the Department of Human Resources in connection with a previous criminal history information background check? Yes (__) No (__).(b) Have you ever been convicted of a crime? Yes (__) No (__). If yes, state the date, crime, location, punishment imposed, and whether the victim was a child or an elderly or disabled individual. ______________________________________________________________________________________________________________
"Date __________ Signature __________________."
(4) An individual who fails or refuses to provide a statement shall not be employed, allowed to work or volunteer, or issued a license or approval as defined in this chapter. Upon receipt of a signed criminal history statement which does not indicate conviction for a crime prohibiting employment under the suitability criteria, an employer, including the Department of Human Resources, may employ an applicant or allow a volunteer or contract provider to work provisionally pending receipt of a suitability determination from the Department of Human Resources.(5) No later than the five business days after employment or a reasonable time after completion of application for a license or approval, an employer, the Department of Human Resources, or child placing agency shall mail or deliver a request for a criminal history background information check to the Department of Public Safety accompanied by the following: (a) Two complete sets of fingerprints, properly executed by a law enforcement agency or an individual properly trained in fingerprinting techniques.(b) Written consent from the applicant, employee, or volunteer for the release of the criminal history background information to the Department of Human Resources.(6) Upon receipt of a suitability determination from the Department of Human Resources that a person or entity is suitable for employment, volunteer work, licensure, or approval based on the criminal history background information check, an employer, a child care facility, adult care facility, a child placing agency, or the Department of Human Resources may make its own determination of employment, licensure, or approval. This chapter shall not create any right to employment, work, approval, or licensure. Upon receipt of a determination from the Department of Human Resources that an individual is unsuitable for employment, licensure, approval, or volunteer work, an employer, the child care facility, adult care facility, child placing agency, or Department of Human Resources shall terminate the individual from employment or volunteer work or shall not employ or use the individual. Termination of employment may be delayed by the employer to allow the individual to challenge either the accuracy or completeness of the criminal history information background report or the suitability determination made by the Department of Human Resources. The Department of Human Resources or child placing agency shall suspend or revoke a license or approval or deny a license or approval application to an individual receiving an unsuitability determination. As an alternative to termination of employment, the Department of Human Resources may transfer a permanent Merit System employee to an available position for which the employee is qualified where unsupervised access to children, the elderly, or persons with disabilities shall not be an essential function of the job.(7) If a review of a criminal history background information check or other information received reveals that the person has submitted false information, the employer, child care facility, adult care facility, child placing agency, or Department of Human Resources shall terminate the employee or volunteer. The Department of Human Resources or child placing agency shall revoke the approval or license of a person or entity when the person or entity submits false information in a review of criminal history background information check or other information. The Department of Human Resources shall be notified of the false information and shall refer the case to an appropriate law enforcement agency or district attorney for investigation and prosecution.(8) Only one criminal history background information check shall be required on an individual regardless of subsequent changes in employment or licensing or approval status. Subsequent criminal history background information checks may be conducted by the employer or licensing or approval entity. The licensing or approval entity shall pay the cost for subsequent criminal history background information checks. If the statement signed by the applicant or employee states that a criminal history background information check has been performed and suitability determination issued on the individual, the employer or licensing agency may request at the time of application only a suitability determination from the Department of Human Resources on the check previously performed, within five business days of employment, or completion of license or approval application, submitting the same kind of information and consent for the request for suitability determination as required by the written consent for a criminal history background information check.(9) Upon being notified that an individual has already had a criminal history background information check performed by the Department of Education pursuant to the Alabama Child Protection Act, Chapter 22A of Title 16 of the Code of Ala. 1975, the Department of Human Resources shall request and the Department of Education shall provide criminal history background reports and reports on subsequent convictions, or convictions entered into the automated system subsequent to the initial report, to the Department of Human Resources without the payment of an additional fee, provided there are no violations of federal laws. Authors: Dianne Wright, James E. Long
Ala. Admin. Code r. 660-5-46-.05
New Rule: Filed August 4, 2000; effective September 8, 2000; operative November 1, 2000. Amended: Filed January 4, 2005; effective February 8, 2005.Statutory Authority:42 U.S.C. §5119, etseq.; 42 U.S.C. §671(g)(20); Ala. Act No. 2000-775; Code of Ala. 1975, §§ 38-7-1, etseq., 38-2-6, 15-20-20, etseq.