Delaware employers in the long-term- and community-care industries are subject to new background-check requirements. The Delaware Code as amended by S.B. 216 to establish an electronic web-based “background check center” for employment in long-term care or community settings. S.B. 216 was signed by Gov. Markell on July 5, 2012.
Creation of a Background Check Center
The biggest change is the creation of a new “Background Check Center.” The stated purpose of the Center is to “consolidate various data streams” from inside and outside the State of Delaware, as necessary to conduct a proper background search.
In short, it requires covered employers to use the Center to perform mandatory criminal background checks for new employees. Nursing or similar facilities, hospice, home-health, and home-care agencies are subject to the law.
There will be a fee for the background check, which is subject to change each year based on the Center’s operating costs. The statute specifically provides that applicants will be provided with “due process protections of notice and opportunity to be heard,” as well as the right to appeal.
S.B. 216 also amended the law relating to criminal-history checks performed by employers operating long-term-care facilities. For example, these employers are now required to use the Background Check Centers, as described above. Some other key changes for employers include:
- An applicant may be “conditionally hired” for 60 days but only if the employer has first received verification that the applicant has been fingerprinted by the State Bureau of Identification.
- Criminal histories are to be treated as “strictly confidential” and must be stored in manner that maintains such confidentiality.
Employers aren’t the only ones with new obligations, though. Employees who were grandfathered in under the original version of the statute have 120 days from the date the Background Check Center is implemented to submit to fingerprinting and a criminal background check.
Applicants have some new obligations, too. They are required to execute a release that allows the employer to obtain a criminal history before the time of hire and post-hire for the purpose of updating the history during employment.
Failure to comply will be costly. Employers and applicants who fail to comply will be subject to a civil penalty of between $1,000 and $5,000 for each violation.
Key Take-Aways for Delaware Employers
The changes to the law is significant—but only for employers and potential employees in the long-term-care industry. Employers in other industries are not affected and should be aware of the national trend away from the use of criminal histories as part of the hiring process. However, for covered employers, the changes are many take effect immediately following the creation of the State’s Background Check Center, so be sure to consult with your employment law counsel about the steps you should be taking to prepare.