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Introduced Version House Bill 3345 History

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hb3345 intr
H. B. 3345


(By Delegates Lane, (By Request)

Armstead and Walters)

[Introduced March 25, 2005; referred to the

Committee on Health and Human Resources then the Judiciary.]




A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §46A-6-111, relating to requiring that employers perform criminal history background checks for employees working as in-home health care providers.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §46A-6-111, to read as follows:

ARTICLE 6. GENERAL CONSUMER PROTECTION.

§46A-6-111. Criminal background checks for persons working for in-home health care providers.

(a) Any employer prior to considering any person who applies for employment as an in-home health care provider shall require that person to submit to a criminal record check by signing a release, the form, authorizing any police or governmental agency, department or office maintaining criminal records, to release any such records. The release shall be restricted in scope in compliance with the following:
(1) The release shall authorize only the release of records of criminal convictions of the person who signed the release, for capital crimes, crimes involving violence, crimes sexual in nature or crimes involving stealing.
(2) The release shall restrict the release of information to the person in charge of the in-home health care service and the release shall state that any information so released shall be marked "personal and confidential" and be addressed only to the person in charge.
(b) Any release executed hereunder shall plainly set forth in its written terms all applicable restrictions. The release shall contain in plain, legible form, the person's name whose background is being checked, date of birth, social security number, place of birth, current driver's license number and name of the state in which the driver's license was issued. It shall also indicate in chronological order the places of residence of the person for the last fifteen years and whether the person served in any branch of the armed services and, if so, which branch. The release shall include a mailing address for the name and address of the requesting business.
(c) In the event any person fails or refuses to sign a release as prescribed hereunder, he or she may not be considered for employment or allowed to work at such business.
(d) Any police or governmental agency under the authority of this state or any subdivision thereof who keeps and maintains criminal records or who acts as a clearinghouse for same, shall provide such records when any request is made hereunder and is accompanied by a full and complete release, in compliance with this section, authorizing the release of such records, signed by the person whose records are being checked.
(e) Any business that receives copies of criminal records of any person under this section shall consider the records in determining whether to hire such person.
(f) Any records received under this section shall be held in the strictest confidence and shall not be disclosed to any other person unless the disclosure is commanded or ordered by the clerk or judge of a court of record.
In cases when a person is hired, the employer shall retain such records for the duration of his or her employment therewith. In no event may records received under this section be retained for more than one year after termination or resignation from employment. At or before the end of any year following the termination or resignation of any employee, such records shall be: (1) Destroyed by incineration; or (2) returned by certified mail, return receipt requested, to the police or governmental agency, department or office from which they came.
(g) In each instance when a criminal check is required to be performed hereunder, the business involved shall complete the release form as provided hereunder with the information required by this section. Upon completion thereof, the form shall be forwarded to each appropriate police or governmental agency, department or office to be processed: Provided, That any employer subject to this section who hires any person, may do so contingent upon the result of a criminal record check required hereunder: Provided, however, That in the event the employer hires any person subject to such criminal record check and thereafter terminates the employee within one month after receiving records showing a criminal conviction for a capital offense, an offense involving violence, an offense sexual in nature or involving stealing, the employer shall not be liable for civil damages in any action for wrongful discharge from employment or other action asserted as the result of such termination from employment.
(h) In determining which police or governmental agencies, departments or offices from which to request a criminal record check, the employer shall take into consideration the following:
(1) The residence of the person whose background is being checked;
(2) The state in which the person holds a valid driver's license;
(3) The address, if any, indicated as a residence on the person's driver's license;
(4) The person's places of residence for the last fifteen years;
(5) Which branch of the armed services, if any, in which the person served.
(i) Any person who fails to comply with the provisions contained in this section to perform criminal record checks shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than two hundred nor more than five hundred dollars or be confined in jail not more than ninety days.
(j) An employer shall conduct a background check as provided in this section, for all of its employees annually.



NOTE: The purpose of this bill is to require that employers perform criminal background checks of persons who are to work as in-home health care providers prior to employment and annually thereafter.

This section is new; therefore, strike-throughs and underscoring have been omitted.
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