La. Admin. Code tit. 40 § IV-379

Current through Register Vol. 50, No. 8, August 20, 2024

Section IV-379 - Criminal History Background Check for Access to Federal Tax Information

A. Definitions

Criminal History Background Checks-a review of an individuals criminal history on the national level through the use of fingerprints sent to the Federal Bureau of Investigation (FBI), the state level, through the use of fingerprints sent to the Louisiana Bureau of Criminal Identification and Information and the local level, through various local law enforcement agencies.

Federal Tax Information (FTI)-consists of federal tax returns and return information (and information derived from it) that is in the Louisiana Workforce Commissions possession or control which is covered by the confidentiality protections of the Internal Revenue Code and subject to its safeguarding requirements, including IRS oversight.

B. Applicability

1. All prospective Louisiana Workforce Commission employees who will be expected to handle FTI and have signed a conditional job offer, all prospective Louisiana Workforce Commission contractors and subcontractors expected to handle FTI, and all current employees, contractors and subcontractors that handle FTI will submit fingerprints and other identifying information and undergo the following criminal history background checks:

a. state criminal history record check;

b. national criminal history record check from the F.B.I.;

c. check of all local law enforcement agencies where the subject has lived, worked and/or attended school in the last five years.

C. General Provisions for Criminal History Background Checks

1. Every current employee, prospective employee, contractor or subcontractor employee identified as having or who will have access to FTI, shall sign a written authorization to have fingerprinting and criminal history background checks performed.

2. Criminal history background checks will be completed at the frequency required by the Internal Revenue Service's Pub. 1075.

3. Criminal history background checks will only be done on prospective employees after a conditional offer of employment is signed by prospective employee.

4. Criminal history background checks on prospective employees of contractors and subcontractors must be done prior to beginning work on the contract.

D. Suitability Determination

1. Unless otherwise excluded from employment under federal or state laws, all criminal conduct revealed by the criminal history background checks will be considered based upon the following criteria:

a. relevance of criminal record or conduct to the position sought or held;

b. the nature of the work to be performed;

c. the time that has elapsed since the conviction or conduct;

d. the seriousness and specific circumstances of the offense/conduct, including the type of harm caused, and/or the legal elements involved in the specific crime committed;

e. the number of offenses;

f. whether the candidate has pending charges;

g. whether the individual is likely to have committed the offense/conduct;

h. the nature and gravity of the offense/conduct;

i. any evidence of rehabilitation or contrition; and

j. any other relevant information, including that submitted by or on behalf of the final candidate, current employee, contractor or subcontractor, or other information obtained by LWC.

2. If no criminal conduct is revealed by the criminal history background checks, the prospective employee or current employee will be deemed suitable to handle FTI based on the criminal background checks only if the prospective or current employee also is a citizen or legally authorized to work in the U.S. and no other issues involving the trustworthiness of the prospective or current employee arise. Contractors and subcontractors will be determined suitable relevant to the background checks if no criminal conduct is found and all other requirements under IRS Publication 1075 are met.

3. If criminal conduct is discovered by the criminal history background checks, the Louisiana Workforce Commission will consider the criteria and make a suitability determination. If an unfavorable determination is made, the prospective employee, current employee, contractors employee or subcontractors employee will be notified in writing and will be given 30 days from the date of mailing, as evidenced by the date indicated on the letter, to present documentation to refute the suitability determination. If no documentation is submitted within 30 days, then the suitability determination will be final. If documentation is presented within 30 days, the Louisiana Workforce Commission will review the documentation and either affirm or reverse its original suitability determination. The Louisiana Workforce Commissions reconsidered determination shall be final. Even if a contractors employee or subcontractors employee receives a favorable suitability determination or redetermination, if all other requirements provided for by IRS Publication 1075 are not met, the contractor employees or subcontractor employees access to FTI will be denied or terminated.

E. Consequences of Unsuitability Determinations

1. access or use of FTI will be immediately denied, suspended, or terminated;

2. job offer will be rescinded for prospective employees if unsuitability determination is final;

3. contract may be terminated;

4. contractors employee or subcontractors employee will be removed or prohibited from performing work;

5. a current employee that receives a determination of unsuitability will have access suspended, and a current employee that receives a final determination of unsuitability will have access to FTI terminated;

6. current employees with access to FTI that receive a final determination of unsuitability may be reassigned or face disciplinary action depending upon the specific circumstances.

F. Nothing in this Rule shall prohibit the Louisiana Workforce Commission from taking adverse action against a prospective employee, or current employee with access to FTI based upon factors other than the outcome of the criminal background checks including, but not limited to, falsifying information on the application, unusual delay in completing or delivering required forms, or any action indicating the individual is unfit for a position of trust. All actions against a classified civil service employee will be taken in accordance with civil service rules.

La. Admin. Code tit. 40, § IV-379

Promulgated by the Workforce Commission, Office of Unemployment Insurance Administration, LR 442026 (11/1/2018), Amended LR 482995 (12/1/2022).

AUTHORITY NOTE: Promulgated in accordance with R.S. 15:587.5 and R.S. 23:1657.1.