State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_122C > GS_122C-80

Article 3A.

Miscellaneous Provisions.

§ 122C‑80.  Criminalhistory record check required for certain applicants for employment.

(a)        Definition. – Asused in this section, the term "provider" applies to an areaauthority/county program and any provider of mental health, developmentaldisability, and substance abuse services that is licensable under Article 2 ofthis Chapter.

(b)        Requirement. – Anoffer of employment by a provider licensed under this Chapter to an applicantto fill a position that does not require the applicant to have an occupationallicense is conditioned on consent to a State and national criminal historyrecord check of the applicant. If the applicant has been a resident of thisState for less than five years, then the offer of employment is conditioned onconsent to a State and national criminal history record check of the applicant.The national criminal history record check shall include a check of theapplicant's fingerprints. If the applicant has been a resident of this Statefor five years or more, then the offer is conditioned on consent to a Statecriminal history record check of the applicant. A provider shall not employ anapplicant who refuses to consent to a criminal history record check required bythis section. Except as otherwise provided in this subsection, within fivebusiness days of making the conditional offer of employment, a provider shallsubmit a request to the Department of Justice under G.S. 114‑19.10 toconduct a criminal history record check required by this section or shallsubmit a request to a private entity to conduct a State criminal history recordcheck required by this section. Notwithstanding G.S. 114‑19.10, theDepartment of Justice shall return the results of national criminal historyrecord checks for employment positions not covered by Public Law 105‑277to the Department of Health and Human Services, Criminal Records Check Unit.Within five business days of receipt of the national criminal history of theperson, the Department of Health and Human Services, Criminal Records CheckUnit, shall notify the provider as to whether the information received mayaffect the employability of the applicant. In no case shall the results of thenational criminal history record check be shared with the provider. Providersshall make available upon request verification that a criminal history checkhas been completed on any staff covered by this section. A county that hasadopted an appropriate local ordinance and has access to the Division ofCriminal Information data bank may conduct on behalf of a provider a Statecriminal history record check required by this section without the providerhaving to submit a request to the Department of Justice. In such a case, thecounty shall commence with the State criminal history record check required bythis section within five business days of the conditional offer of employmentby the provider. All criminal history information received by the provider isconfidential and may not be disclosed, except to the applicant as provided in subsection(c) of this section. For purposes of this subsection, the term "privateentity" means a business regularly engaged in conducting criminal historyrecord checks utilizing public records obtained from a State agency.

(c)        Action. – If anapplicant's criminal history record check reveals one or more convictions of arelevant offense, the provider shall consider all of the following factors indetermining whether to hire the applicant:

(1)        The level andseriousness of the crime.

(2)        The date of the crime.

(3)        The age of theperson at the time of the conviction.

(4)        The circumstancessurrounding the commission of the crime, if known.

(5)        The nexus betweenthe criminal conduct of the person and the job duties of the position to befilled.

(6)        The prison, jail,probation, parole, rehabilitation, and employment records of the person sincethe date the crime was committed.

(7)        The subsequentcommission by the person of a relevant offense.

Thefact of conviction of a relevant offense alone shall not be a bar toemployment; however, the listed factors shall be considered by the provider. Ifthe provider disqualifies an applicant after consideration of the relevantfactors, then the provider may disclose information contained in the criminalhistory record check that is relevant to the disqualification, but may notprovide a copy of the criminal history record check to the applicant.

(d)        Limited Immunity. –A provider and an officer or employee of a provider that, in good faith,complies with this section shall be immune from civil liability for:

(1)        The failure of theprovider to employ an individual on the basis of information provided in thecriminal history record check of the individual.

(2)        Failure to check anemployee's history of criminal offenses if the employee's criminal historyrecord check is requested and received in compliance with this section.

(e)        Relevant Offense. –As used in this section, "relevant offense" means a county, state, orfederal criminal history of conviction or pending indictment of a crime,whether a misdemeanor or felony, that bears upon an individual's fitness tohave responsibility for the safety and well‑being of persons needingmental health, developmental disabilities, or substance abuse services. Thesecrimes include the criminal offenses set forth in any of the following Articlesof Chapter 14 of the General Statutes: Article 5, Counterfeiting and IssuingMonetary Substitutes; Article 5A, Endangering Executive and LegislativeOfficers; Article 6, Homicide; Article 7A, Rape and Other Sex Offenses; Article8, Assaults; Article 10, Kidnapping and Abduction; Article 13, Malicious Injuryor Damage by Use of Explosive or Incendiary Device or Material; Article 14,Burglary and Other Housebreakings; Article 15, Arson and Other Burnings;Article 16, Larceny; Article 17, Robbery; Article 18, Embezzlement; Article 19,False Pretenses and Cheats; Article 19A, Obtaining Property or Services byFalse or Fraudulent Use of Credit Device or Other Means; Article 19B, FinancialTransaction Card Crime Act; Article 20, Frauds; Article 21, Forgery; Article26, Offenses Against Public Morality and Decency; Article 26A, AdultEstablishments; Article 27, Prostitution; Article 28, Perjury; Article 29,Bribery; Article 31, Misconduct in Public Office; Article 35, Offenses Againstthe Public Peace; Article 36A, Riots and Civil Disorders; Article 39,Protection of Minors; Article 40, Protection of the Family; Article 59, PublicIntoxication; and Article 60, Computer‑Related Crime. These crimes alsoinclude possession or sale of drugs in violation of the North CarolinaControlled Substances Act, Article 5 of Chapter 90 of the General Statutes, andalcohol‑related offenses such as sale to underage persons in violation ofG.S. 18B‑302 or driving while impaired in violation of G.S. 20‑138.1through G.S. 20‑138.5.

(f)         Penalty forFurnishing False Information. – Any applicant for employment who willfullyfurnishes, supplies, or otherwise gives false information on an employmentapplication that is the basis for a criminal history record check under thissection shall be guilty of a Class A1 misdemeanor.

(g)        ConditionalEmployment. – A provider may employ an applicant conditionally prior toobtaining the results of a criminal history record check regarding the applicantif both of the following requirements are met:

(1)        The provider shallnot employ an applicant prior to obtaining the applicant's consent for criminalhistory record check as required in subsection (b) of this section or thecompleted fingerprint cards as required in G.S. 114‑19.10.

(2)        The provider shallsubmit the request for a criminal history record check not later than fivebusiness days after the individual begins conditional employment. (2000‑154, s. 4; 2001‑155,s. 1; 2004‑124, ss. 10.19D(c), (h); 2005‑4, ss. 1, 2, 3, 4, 5(a);2007‑444, s. 3.)