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
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
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
(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,
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
(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
(5) Which branch of the armed services, if any, in which the
(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
This section is new; therefore, strike-throughs and
underscoring have been omitted.