Current through Register Vol. 51, No. 6, December 1, 2024
RELATES TO:
KRS
18A.095,
336.015,
336.040,
336.125
NECESSITY, FUNCTION, AND CONFORMITY:
KRS 336.040 requires
the Labor Cabinet to exercise all administrative functions of the state
concerned with the employer-employee relationship. KRS 336.125 requires the
Labor Cabinet to promulgate administrative regulations to establish
requirements concerning criminal background checks for prospective and current
employees, including contract staff, with access to or use of federal tax
information (FTI). This administrative regulation establishes the guidelines to
implement the requirements set forth in KRS 336.125 and IRS Publication
1075.
Section 1. Definitions.
(1) "Applicant" means an individual who
applies for employment with the Labor Cabinet or its offices, or a contractor
working on behalf of the Cabinet or its offices, who has, or will likely have,
access to or use of FTI in their regular course of business.
(2) "Contract staff" means an individual
employed by the Labor Cabinet or its offices, or a contractor working on behalf
of the Cabinet or its offices, who does not meet the definition of employee in
this section.
(3) "Criminal
background check" means a national and state fingerprint-supported criminal
history background investigation performed in accordance with KRS
336.125.
(4) "Employee" means
either a classified employee as defined by
KRS
18A.005(7), an unclassified
employee pursuant to
KRS
18A.115, or a federally funded time-limited
employee as defined by
KRS
18A.005(15).
(5) "Disqualifying offense" means a
conviction, plea of guilty, Alford plea, or plea of nolo contendere to any
felony, misdemeanor, or offense the nature of which indicates that the
applicant, employee, or contract staff constitutes an unreasonable and
immediate risk to the security of FTI (including crimes of theft or
dishonesty), unless the Labor Cabinet or its offices determine there are
mitigating circumstances that sufficiently remediate the existing
risk.
(6) "Federal tax information"
or "FTI" means federal tax returns and return information received directly
from the IRS or obtained through an authorized secondary source, such as the
Social Security Administration (SSA), Federal Office of Child Support
Enforcement (OCSE), Bureau of Fiscal Service (BFS), Centers for Medicare and
Medicaid Services (CM) or any entity acting on behalf of the IRS pursuant to an
IRC 6103 Agreement.
(7) "Office"
means any agency, office, department, or commission within the Labor
Cabinet.
(8) "Responsible agency"
means an office within the Labor Cabinet, or contractor working on behalf of an
office, that employs or offers a job to an individual in a position for which
the job duties include access to or use of FTI.
Section 2. Requirements for Criminal
Background Checks.
(1) The Labor Cabinet shall
require prospective and current employees of the Cabinet or its offices,
including contract staff, whose job duties include access to or use of FTI to
submit to a fingerprint-based national and state criminal background check as a
condition of initial or continued employment. The criminal background check
shall occur:
(a) After the applicant is
offered a job but before he or she begins working; and
(b) At least once every five (5) years for
current employees or contract staff.
(2) The Labor Cabinet, its offices, or
responsible agency that requests a fingerprint-based national and state
criminal background check for an applicant, current employee, or contract staff
shall incur all fees associated with the cost of each criminal background check
requested.
(3) For contract staff
employed by an entity under contract with the Labor Cabinet or its offices, it
shall be sufficient for the purposes of this administrative regulation for the
entity under contract to provide a national and state criminal background check
for contract staff anticipated to have access to or use of FTI in their work
for the Labor Cabinet or its offices. The national and state criminal
background check provided by the entity under contract shall have been
completed within two (2) years of the start date for contract staff.
(4) The Labor Cabinet, its offices, or
responsible agency shall not employ any person in a position for which the job
duties include access to or use of FTI if the individual refuses to consent to
a fingerprint-based national and state criminal background check.
(5) The Labor Cabinet, its offices, or
responsible agency shall notify each applicant, current employee, or contract
staff determined to have a disqualifying offense.
Section 3. Disqualification. The Labor
Cabinet, its offices, or responsible agency shall not employ or contract with
an individual with a disqualifying offense as defined in Section 1(5) of this
administrative regulation or whose background check reveals any information
that bears upon the fitness of the individual to work in a position with access
to or use of FTI. The Labor Cabinet, its offices, or responsible agency shall
have the sole discretion to determine if an applicant, current employee, or
contract staff is suitable to work in a position with access to or use of FTI
and ensure its protection and security in accordance with KRS 336.125, IRS
Publication 1075, and any other relevant policy or procedure concerning the
confidentiality of FTI.
Section 4.
Individuals Ineligible to be Hired. The Labor Cabinet, its offices, or
responsible agency may refuse to hire, contract with, or permit to work any
applicant that submits to a criminal background check if one (1) or more of the
following conditions apply:
(1) The applicant
refuses to provide photo identification and Social Security Number;
(2) The applicant fails to submit their
fingerprints at an authorized collection site within five (5) business days of
receiving notice to submit fingerprints;
(3) Upon completion of the criminal
background check, the Labor Cabinet, its offices, or responsible agency
receives notice that the applicant is found to have a disqualifying offense;
or
(4) Final and acceptable
disposition of a criminal charge related to a disqualifying offense is not
provided to the Labor Cabinet, its offices, or responsible agency within sixty
(60) days of fingerprint submission.
Section 5. Notice of a Disqualifying Offense
- Applicants.
(1) Upon completion of the
criminal background check, the Labor Cabinet, its offices, or responsible
agency shall notify applicants determined to have a disqualifying
offense.
(2) If an applicant wishes
to obtain information concerning the disqualifying offense or challenge the
accuracy of a criminal background check, the Labor Cabinet, its offices, or
responsible agency shall refer the applicant to the appropriate state or
federal law enforcement agency.
Section 6. Notice of Disqualifying Offense,
Reconsideration, and Appeal - Current Employees.
(1) Upon completion of a criminal background
check, the Labor Cabinet, its offices, or responsible agency shall notify
current employees determined to have a disqualifying offense. A current
employee found to have a disqualifying offense shall immediately be removed
from duties with access to or use of FTI.
(2) Upon receipt of notice of a disqualifying
offense, a current employee removed from responsibilities requiring FTI access
or use may submit a written request for reconsideration to the Labor Cabinet's
Division of Human Resources no later than fourteen (14) calendar days from the
date the notice is issued.
(3) The
current employee's request for reconsideration shall include the following
information:
(a) A written explanation of each
disqualifying offense, including:
1. A
description of the events related to the disqualifying offense;
2. The number of years since the occurrence
of the disqualifying offense;
3.
The age of the offender at the time of the disqualifying offense;
4. Evidence that the individual has pursued
or achieved rehabilitation with regard to the disqualifying offense;
and
5. Any other relevant and
mitigating circumstances regarding the disqualifying offense;
(b) Official documentation showing
that all fines, including court-imposed fines, costs or restitution, have been
paid, or documentation demonstrating adherence to a payment schedule, if
applicable;
(c) The date probation
or parole was satisfactorily completed, if applicable; and
(d) Employment and character references,
including any other evidence demonstrating the ability of the individual to
competently perform the employment responsibilities.
(4) A current employee who requests
reconsideration may be retained on staff during the review process subject to
the following factors:
(a) The nature and
severity of the disqualifying offense;
(b) The disposition of the disqualifying
offense;
(c) The time elapsed since
the disqualifying offense;
(d) The
employee's personnel history; and
(e) Whether the employee may be assigned
other duties that do not require access to or use of FTI.
(5) After review, the Labor Cabinet, its
offices, or responsible agency may:
(a)
Transfer the employee to another open position at the same pay grade or lower
within the Labor Cabinet, its offices, or responsible agency for which the
employee is qualified and for which access to or use of FTI is not part of the
job responsibilities;
(b) Dismiss
the employee if it is determined that the nature of the disqualifying offense
presents an immediate, serious and irreparable risk to FTI if the employee's
job duties require access to or use of FTI;
(c) Redefine the employee's job
responsibilities to exclude those functions that require access to or use of
FTI; or
(d) Any other action
permitted by law.
(6)
The appointing authority as defined in
KRS
18A.005(1), or his or her
designee, shall issue a final written determination regarding the
reconsideration request. The appointing authority or his or her designee shall
notify the employee of the final determination no later than thirty (30)
calendar days from receipt of the written request for reconsideration, and the
notice shall include any personnel action to be taken by the Labor Cabinet, its
offices, or responsible agency as a result of the final
determination.
(7) The current
employee may have the right to appeal an action taken by the Labor Cabinet, its
offices, or responsible agency pursuant to the applicable sections of KRS
Chapter 18A and the Kentucky Administrative Regulations.
Section 7. Notice of Disqualifying Offense -
Contract Staff.
(1) Upon completion of the
criminal background check, any contract staff found to have a disqualifying
offense shall immediately be subject to one (1) or more of the following
actions at the sole discretion of the Labor Cabinet, its offices, or
responsible agency:
(b) If permitted by the contract, removed
from all duties requiring access to or use of FTI and assigned other duties
that do not require access to or use of FTI; or
(c) Any other action permitted by
law.
(2) The Labor
Cabinet, its offices, or responsible agency shall notify the contract staff of
the action or actions taken within seven (7) days of discovery of the
disqualifying offense.
(3) If the
contract staff wishes to obtain information concerning the disqualifying
offense or challenge the accuracy of a criminal background check, the Labor
Cabinet, its offices, or responsible agency shall refer the applicant to the
appropriate state or federal law enforcement agency.
Section 8. Challenges to Criminal Background
Check Information. An individual subject to a criminal background check
required by KRS 336.125 and this administrative regulation shall have the right
to request and review the results of his or her national and state criminal
background check and to request correction of any inaccurate information. All
corrections shall be addressed with the Federal Bureau of Investigation or the
Department of Kentucky State Police; the Labor Cabinet cannot assist with this
process or correct any inaccurate information.
Section 9. Pardons, Diversions, and
Expungements. An applicant, employee, or contract staff who has received a
pardon for a disqualifying offense, has had a disqualifying offense dismissed
after successful completion of a diversion program, or has had the
disqualifying offense expunged shall not be barred from employment with the
Labor Cabinet, its offices, or responsible agency in a position with job duties
that include access to or use of FTI for reasons related to the underlying
disqualifying offense(s).
STATUTORY AUTHORITY: KRS
336.125