§ 131D‑40. Criminalhistory record checks required for certain applicants for employment.
(a) Requirement; AdultCare Home. An offer of employment by an adult care home licensed under thisChapter to an applicant to fill a position that does not require the applicantto have an occupational license is conditioned on consent to a 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. An adult care home shall notemploy an applicant who refuses to consent to a criminal history record checkrequired by this section. Within five business days of making the conditionaloffer of employment, an adult care home shall submit a request to theDepartment of Justice under G.S. 114‑19.10 to conduct a State or nationalcriminal history record check required by this section, or shall submit arequest to a private entity to conduct a State criminal history record checkrequired by this section. Notwithstanding G.S. 114‑19.10, the Departmentof Justice shall return the results of national criminal history record checksfor employment positions not covered by Public Law 105‑277 to theDepartment of Health and Human Services, Criminal Records Check Unit. Withinfive business days of receipt of the national criminal history of the person,the Department of Health and Human Services, Criminal Records Check Unit, shallnotify the adult care home as to whether the information received may affectthe employability of the applicant. In no case shall the results of thenational criminal history record check be shared with the adult care home.Adult care homes shall make available upon request verification that a criminalhistory check has been completed on any staff covered by this section. Allcriminal history information received by the home is confidential and may notbe disclosed, except to the applicant as provided in subsection (b) of thissection.
(a1) Requirement;Contract Agency of Adult Care Home. An offer of employment by a contractagency of an adult care home licensed under this Chapter to an applicant tofill a position that does not require the applicant to have an occupationallicense is conditioned upon consent to a criminal history record check of theapplicant. If the applicant has been a resident of this State for less thanfive years, then the offer of employment is conditioned on consent to a Stateand national criminal history record check of the applicant. The nationalcriminal history record check shall include a check of the applicant'sfingerprints. If the applicant has been a resident of this State for five yearsor more, then the offer is conditioned on consent to a State criminal historyrecord check of the applicant. A contract agency of an adult care home shallnot employ an applicant who refuses to consent to a criminal history recordcheck required by this section. Within five business days of making theconditional offer of employment, a contract agency of an adult care home shallsubmit a request to the Department of Justice under G.S. 114‑19.10 toconduct a State or national criminal history record check required by thissection, or shall submit a request to a private entity to conduct a Statecriminal history record check required by this section. Notwithstanding G.S.114‑19.10, the Department of Justice shall return the results of nationalcriminal history record checks for employment positions not covered by PublicLaw 105‑277 to the Department of Health and Human Services, CriminalRecords Check Unit. Within five business days of receipt of the nationalcriminal history of the person, the Department of Health and Human Services,Criminal Records Check Unit, shall notify the contract agency of the adult carehome as to whether the information received may affect the employability of theapplicant. In no case shall the results of the national criminal history recordcheck be shared with the contract agency of the adult care home. Contractagencies of adult care homes shall make available upon request verificationthat a criminal history check has been completed on any staff covered by thissection. All criminal history information received by the contract agency isconfidential and may not be disclosed, except to the applicant as provided bysubsection (b) of this section.
(b) Action. If anapplicant's criminal history record check reveals one or more convictions of arelevant offense, the adult care home or a contract agency of the adult carehome shall consider all of the following factors in determining whether to hirethe applicant:
(1) The level andseriousness of the crime.
(2) The date of thecrime.
(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.
The fact of conviction of arelevant offense alone shall not be a bar to employment; however, the listedfactors shall be considered by the adult care home or the contract agency ofthe adult care home. If the adult care home or a contract agency of the adultcare home disqualifies an applicant after consideration of the relevant factors,then the adult care home or the contract agency may disclose informationcontained in the criminal history record check that is relevant to thedisqualification, but may not provide a copy of the criminal history recordcheck to the applicant.
(c) Limited Immunity. An adult care home and an officer or employee of an adult care home that, ingood faith, complies with this section is not liable for the failure of thehome to employ an individual on the basis of information provided in thecriminal history record check of the individual.
(d) 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 aged or disabledpersons. These crimes include the criminal offenses set forth in any of thefollowing Articles of Chapter 14 of the General Statutes: Article 5,Counterfeiting and Issuing Monetary Substitutes; Article 5A, EndangeringExecutive and Legislative Officers; Article 6, Homicide; Article 7A, Rape andOther Sex Offenses; Article 8, Assaults; Article 10, Kidnapping and Abduction;Article 13, Malicious Injury or Damage by Use of Explosive or Incendiary Deviceor Material; Article 14, Burglary and Other Housebreakings; Article 15, Arsonand Other Burnings; Article 16, Larceny; Article 17, Robbery; Article 18,Embezzlement; Article 19, False Pretenses and Cheats; Article 19A, ObtainingProperty or Services by False or Fraudulent Use of Credit Device or OtherMeans; Article 19B, Financial Transaction Card Crime Act; Article 20, Frauds;Article 21, Forgery; Article 26, Offenses against Public Morality and Decency;Article 26A, Adult Establishments; Article 27, Prostitution; Article 28,Perjury; Article 29, Bribery; Article 31, Misconduct in Public Office; Article35, Offenses Against the Public Peace; Article 36A, Riots and Civil Disorders;Article 39, Protection of Minors; Article 40, Protection of the Family; Article59, Public Intoxication; and Article 60, Computer‑Related Crime. Thesecrimes also include possession or sale of drugs in violation of the NorthCarolina Controlled Substances Act, Article 5 of Chapter 90 of the GeneralStatutes, and alcohol‑related offenses such as sale to underage personsin violation of G.S. 18B‑302 or driving while impaired in violation ofG.S. 20‑138.1 through G.S. 20‑138.5.
(e) 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.
(f) ConditionalEmployment. An adult care home may employ an applicant conditionally prior toobtaining the results of a criminal history record check regarding theapplicant if both of the following requirements are met:
(1) The adult care homeshall not employ an applicant prior to obtaining the applicant's consent for acriminal history record check as required in subsection (a) of this section orthe completed fingerprint cards as required in G.S. 114‑19.10.
(2) The adult care homeshall submit the request for a criminal history record check not later thanfive business days after the individual begins conditional employment.
(g) Immunity FromLiability. An entity and officers and employees of an entity shall be immunefrom civil liability for failure to check an employee's history of criminaloffenses if the employee's criminal history record check is requested andreceived in compliance with this section.
(h) For purposes ofthis section, the term "private entity" means a business regularlyengaged in conducting criminal history record checks utilizing public recordsobtained from a State agency. (1995 (Reg. Sess., 1996), c. 606, s. 2; 1997‑125,s. 1; 2000‑154, ss. 2.(a), (b); 2004‑124, ss. 10.19D(b), (g); 2005‑4,ss. 6, 7; 2007‑444, s. 3.1.)
§ 131D‑40. Criminalhistory record checks required for certain applicants for employment.
(a) Requirement; AdultCare Home. An offer of employment by an adult care home licensed under thisChapter to an applicant to fill a position that does not require the applicantto have an occupational license is conditioned on consent to a 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. An adult care home shall notemploy an applicant who refuses to consent to a criminal history record checkrequired by this section. Within five business days of making the conditionaloffer of employment, an adult care home shall submit a request to theDepartment of Justice under G.S. 114‑19.10 to conduct a State or nationalcriminal history record check required by this section, or shall submit arequest to a private entity to conduct a State criminal history record checkrequired by this section. Notwithstanding G.S. 114‑19.10, the Departmentof Justice shall return the results of national criminal history record checksfor employment positions not covered by Public Law 105‑277 to theDepartment of Health and Human Services, Criminal Records Check Unit. Withinfive business days of receipt of the national criminal history of the person,the Department of Health and Human Services, Criminal Records Check Unit, shallnotify the adult care home as to whether the information received may affectthe employability of the applicant. In no case shall the results of thenational criminal history record check be shared with the adult care home.Adult care homes shall make available upon request verification that a criminalhistory check has been completed on any staff covered by this section. Allcriminal history information received by the home is confidential and may notbe disclosed, except to the applicant as provided in subsection (b) of thissection.
(a1) Requirement;Contract Agency of Adult Care Home. An offer of employment by a contractagency of an adult care home licensed under this Chapter to an applicant tofill a position that does not require the applicant to have an occupationallicense is conditioned upon consent to a criminal history record check of theapplicant. If the applicant has been a resident of this State for less thanfive years, then the offer of employment is conditioned on consent to a Stateand national criminal history record check of the applicant. The nationalcriminal history record check shall include a check of the applicant'sfingerprints. If the applicant has been a resident of this State for five yearsor more, then the offer is conditioned on consent to a State criminal historyrecord check of the applicant. A contract agency of an adult care home shallnot employ an applicant who refuses to consent to a criminal history recordcheck required by this section. Within five business days of making theconditional offer of employment, a contract agency of an adult care home shallsubmit a request to the Department of Justice under G.S. 114‑19.10 toconduct a State or national criminal history record check required by thissection, or shall submit a request to a private entity to conduct a Statecriminal history record check required by this section. Notwithstanding G.S.114‑19.10, the Department of Justice shall return the results of nationalcriminal history record checks for employment positions not covered by PublicLaw 105‑277 to the Department of Health and Human Services, CriminalRecords Check Unit. Within five business days of receipt of the nationalcriminal history of the person, the Department of Health and Human Services,Criminal Records Check Unit, shall notify the contract agency of the adult carehome as to whether the information received may affect the employability of theapplicant. In no case shall the results of the national criminal history recordcheck be shared with the contract agency of the adult care home. Contractagencies of adult care homes shall make available upon request verificationthat a criminal history check has been completed on any staff covered by thissection. All criminal history information received by the contract agency isconfidential and may not be disclosed, except to the applicant as provided bysubsection (b) of this section.
(b) Action. If anapplicant's criminal history record check reveals one or more convictions of arelevant offense, the adult care home or a contract agency of the adult carehome shall consider all of the following factors in determining whether to hirethe applicant:
(1) The level andseriousness of the crime.
(2) The date of thecrime.
(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.
The fact of conviction of arelevant offense alone shall not be a bar to employment; however, the listedfactors shall be considered by the adult care home or the contract agency ofthe adult care home. If the adult care home or a contract agency of the adultcare home disqualifies an applicant after consideration of the relevant factors,then the adult care home or the contract agency may disclose informationcontained in the criminal history record check that is relevant to thedisqualification, but may not provide a copy of the criminal history recordcheck to the applicant.
(c) Limited Immunity. An adult care home and an officer or employee of an adult care home that, ingood faith, complies with this section is not liable for the failure of thehome to employ an individual on the basis of information provided in thecriminal history record check of the individual.
(d) 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 aged or disabledpersons. These crimes include the criminal offenses set forth in any of thefollowing Articles of Chapter 14 of the General Statutes: Article 5,Counterfeiting and Issuing Monetary Substitutes; Article 5A, EndangeringExecutive and Legislative Officers; Article 6, Homicide; Article 7A, Rape andOther Sex Offenses; Article 8, Assaults; Article 10, Kidnapping and Abduction;Article 13, Malicious Injury or Damage by Use of Explosive or Incendiary Deviceor Material; Article 14, Burglary and Other Housebreakings; Article 15, Arsonand Other Burnings; Article 16, Larceny; Article 17, Robbery; Article 18,Embezzlement; Article 19, False Pretenses and Cheats; Article 19A, ObtainingProperty or Services by False or Fraudulent Use of Credit Device or OtherMeans; Article 19B, Financial Transaction Card Crime Act; Article 20, Frauds;Article 21, Forgery; Article 26, Offenses against Public Morality and Decency;Article 26A, Adult Establishments; Article 27, Prostitution; Article 28,Perjury; Article 29, Bribery; Article 31, Misconduct in Public Office; Article35, Offenses Against the Public Peace; Article 36A, Riots and Civil Disorders;Article 39, Protection of Minors; Article 40, Protection of the Family; Article59, Public Intoxication; and Article 60, Computer‑Related Crime. Thesecrimes also include possession or sale of drugs in violation of the NorthCarolina Controlled Substances Act, Article 5 of Chapter 90 of the GeneralStatutes, and alcohol‑related offenses such as sale to underage personsin violation of G.S. 18B‑302 or driving while impaired in violation ofG.S. 20‑138.1 through G.S. 20‑138.5.
(e) 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.
(f) ConditionalEmployment. An adult care home may employ an applicant conditionally prior toobtaining the results of a criminal history record check regarding theapplicant if both of the following requirements are met:
(1) The adult care homeshall not employ an applicant prior to obtaining the applicant's consent for acriminal history record check as required in subsection (a) of this section orthe completed fingerprint cards as required in G.S. 114‑19.10.
(2) The adult care homeshall submit the request for a criminal history record check not later thanfive business days after the individual begins conditional employment.
(g) Immunity FromLiability. An entity and officers and employees of an entity shall be immunefrom civil liability for failure to check an employee's history of criminaloffenses if the employee's criminal history record check is requested andreceived in compliance with this section.
(h) For purposes ofthis section, the term "private entity" means a business regularlyengaged in conducting criminal history record checks utilizing public recordsobtained from a State agency. (1995 (Reg. Sess., 1996), c. 606, s. 2; 1997‑125,s. 1; 2000‑154, ss. 2.(a), (b); 2004‑124, ss. 10.19D(b), (g); 2005‑4,ss. 6, 7; 2007‑444, s. 3.1.)
§ 131D‑40. Criminalhistory record checks required for certain applicants for employment.
(a) Requirement; AdultCare Home. An offer of employment by an adult care home licensed under thisChapter to an applicant to fill a position that does not require the applicantto have an occupational license is conditioned on consent to a 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. An adult care home shall notemploy an applicant who refuses to consent to a criminal history record checkrequired by this section. Within five business days of making the conditionaloffer of employment, an adult care home shall submit a request to theDepartment of Justice under G.S. 114‑19.10 to conduct a State or nationalcriminal history record check required by this section, or shall submit arequest to a private entity to conduct a State criminal history record checkrequired by this section. Notwithstanding G.S. 114‑19.10, the Departmentof Justice shall return the results of national criminal history record checksfor employment positions not covered by Public Law 105‑277 to theDepartment of Health and Human Services, Criminal Records Check Unit. Withinfive business days of receipt of the national criminal history of the person,the Department of Health and Human Services, Criminal Records Check Unit, shallnotify the adult care home as to whether the information received may affectthe employability of the applicant. In no case shall the results of thenational criminal history record check be shared with the adult care home.Adult care homes shall make available upon request verification that a criminalhistory check has been completed on any staff covered by this section. Allcriminal history information received by the home is confidential and may notbe disclosed, except to the applicant as provided in subsection (b) of thissection.
(a1) Requirement;Contract Agency of Adult Care Home. An offer of employment by a contractagency of an adult care home licensed under this Chapter to an applicant tofill a position that does not require the applicant to have an occupationallicense is conditioned upon consent to a criminal history record check of theapplicant. If the applicant has been a resident of this State for less thanfive years, then the offer of employment is conditioned on consent to a Stateand national criminal history record check of the applicant. The nationalcriminal history record check shall include a check of the applicant'sfingerprints. If the applicant has been a resident of this State for five yearsor more, then the offer is conditioned on consent to a State criminal historyrecord check of the applicant. A contract agency of an adult care home shallnot employ an applicant who refuses to consent to a criminal history recordcheck required by this section. Within five business days of making theconditional offer of employment, a contract agency of an adult care home shallsubmit a request to the Department of Justice under G.S. 114‑19.10 toconduct a State or national criminal history record check required by thissection, or shall submit a request to a private entity to conduct a Statecriminal history record check required by this section. Notwithstanding G.S.114‑19.10, the Department of Justice shall return the results of nationalcriminal history record checks for employment positions not covered by PublicLaw 105‑277 to the Department of Health and Human Services, CriminalRecords Check Unit. Within five business days of receipt of the nationalcriminal history of the person, the Department of Health and Human Services,Criminal Records Check Unit, shall notify the contract agency of the adult carehome as to whether the information received may affect the employability of theapplicant. In no case shall the results of the national criminal history recordcheck be shared with the contract agency of the adult care home. Contractagencies of adult care homes shall make available upon request verificationthat a criminal history check has been completed on any staff covered by thissection. All criminal history information received by the contract agency isconfidential and may not be disclosed, except to the applicant as provided bysubsection (b) of this section.
(b) Action. If anapplicant's criminal history record check reveals one or more convictions of arelevant offense, the adult care home or a contract agency of the adult carehome shall consider all of the following factors in determining whether to hirethe applicant:
(1) The level andseriousness of the crime.
(2) The date of thecrime.
(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.
The fact of conviction of arelevant offense alone shall not be a bar to employment; however, the listedfactors shall be considered by the adult care home or the contract agency ofthe adult care home. If the adult care home or a contract agency of the adultcare home disqualifies an applicant after consideration of the relevant factors,then the adult care home or the contract agency may disclose informationcontained in the criminal history record check that is relevant to thedisqualification, but may not provide a copy of the criminal history recordcheck to the applicant.
(c) Limited Immunity. An adult care home and an officer or employee of an adult care home that, ingood faith, complies with this section is not liable for the failure of thehome to employ an individual on the basis of information provided in thecriminal history record check of the individual.
(d) 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 aged or disabledpersons. These crimes include the criminal offenses set forth in any of thefollowing Articles of Chapter 14 of the General Statutes: Article 5,Counterfeiting and Issuing Monetary Substitutes; Article 5A, EndangeringExecutive and Legislative Officers; Article 6, Homicide; Article 7A, Rape andOther Sex Offenses; Article 8, Assaults; Article 10, Kidnapping and Abduction;Article 13, Malicious Injury or Damage by Use of Explosive or Incendiary Deviceor Material; Article 14, Burglary and Other Housebreakings; Article 15, Arsonand Other Burnings; Article 16, Larceny; Article 17, Robbery; Article 18,Embezzlement; Article 19, False Pretenses and Cheats; Article 19A, ObtainingProperty or Services by False or Fraudulent Use of Credit Device or OtherMeans; Article 19B, Financial Transaction Card Crime Act; Article 20, Frauds;Article 21, Forgery; Article 26, Offenses against Public Morality and Decency;Article 26A, Adult Establishments; Article 27, Prostitution; Article 28,Perjury; Article 29, Bribery; Article 31, Misconduct in Public Office; Article35, Offenses Against the Public Peace; Article 36A, Riots and Civil Disorders;Article 39, Protection of Minors; Article 40, Protection of the Family; Article59, Public Intoxication; and Article 60, Computer‑Related Crime. Thesecrimes also include possession or sale of drugs in violation of the NorthCarolina Controlled Substances Act, Article 5 of Chapter 90 of the GeneralStatutes, and alcohol‑related offenses such as sale to underage personsin violation of G.S. 18B‑302 or driving while impaired in violation ofG.S. 20‑138.1 through G.S. 20‑138.5.
(e) 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.
(f) ConditionalEmployment. An adult care home may employ an applicant conditionally prior toobtaining the results of a criminal history record check regarding theapplicant if both of the following requirements are met:
(1) The adult care homeshall not employ an applicant prior to obtaining the applicant's consent for acriminal history record check as required in subsection (a) of this section orthe completed fingerprint cards as required in G.S. 114‑19.10.
(2) The adult care homeshall submit the request for a criminal history record check not later thanfive business days after the individual begins conditional employment.
(g) Immunity FromLiability. An entity and officers and employees of an entity shall be immunefrom civil liability for failure to check an employee's history of criminaloffenses if the employee's criminal history record check is requested andreceived in compliance with this section.
(h) For purposes ofthis section, the term "private entity" means a business regularlyengaged in conducting criminal history record checks utilizing public recordsobtained from a State agency. (1995 (Reg. Sess., 1996), c. 606, s. 2; 1997‑125,s. 1; 2000‑154, ss. 2.(a), (b); 2004‑124, ss. 10.19D(b), (g); 2005‑4,ss. 6, 7; 2007‑444, s. 3.1.)
