803 Ky. Admin. Regs. 5:005

Current through Register Vol. 51, No. 5, November 1, 2024

Section 803 KAR 5:005 - Employee access to or use of federal tax information; required criminal background check

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:

(a) Termination;

(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).

803 KAR 5:005

48 Ky.R. 2660; 49 Ky.R. 56; eff. 10/4/2022.

STATUTORY AUTHORITY: KRS 336.125