Employment of Persons with Criminal Records
|No. 3-5a||Rev. 10-11-11||Date 11-9-89|
- Utah Code 53A-3-410 (Criminal background checks on school personnel -- Notice -- Payment of cost -- Request for review)
- Utah Code Section 53B-1-110 (Higher Education Criminal Background Checks)
- Utah State Board of Regents Policy and Procedure R-847 (Criminal Background Checks)
- Utah State Board of Regents Policy and Procedures R-481 (Academic Freedom, Professional Responsibility and Tenure)
- PPM 3-31 (Staff Employee Grievances With Provision for Certain Hourly Employees)
- PPM 9-9 through 9-14 (Faculty Due Process)
Weber State University strives to create an environment where all individuals may safely learn, work and visit. Some individuals' prior criminal records may reveal negative conduct. Employment of such individuals may create a risk to the safety or security of individuals, resources or university programs or systems. This policy provides for conducting background checks and risk assessments of certain prospective and current employees to assist the university in making informed employment decisions. This policy is also intended to comply with state law and the requirements of the Utah System of Higher Education regarding criminal background checks for employees.
3.1 Applicant - a person who expresses interest in being considered for an employment opportunity and completes the procedures required to apply for that position.
3.2 Criminal Background Check - a commercial or governmental process of searching public records to determine whether an individual has been convicted of criminal conduct anywhere in the United States of America. The university may choose to search in one or more foreign countries or seek additional evidence of character issues as part of a criminal background check.
3.3 Diminished Capacity Adult - a person who lacks decision making capacity which requires, to a greater or lesser degree: (1) possession of a set of values and goals; (2) the ability to communicate and to understand information; and (3) the ability to reason and to deliberate about one's choices.
3.4 Employee - a faculty, adjunct faculty, hourly, or staff (including administration) employee of the university who receives compensation for work or services from funds controlled by the university, regardless of the source of the funds, the duties of the position, the amount of compensation paid, or the percent of time worked.
3.5 Felony - A serious crime punishable by imprisonment in excess of one year. A crime which was charged as a felony at the time of conviction, but which has been reduced to a misdemeanor, or expunged, by a court of competent jurisdiction at the time of application for employment, shall not be considered a felony.
3.6 Final Applicant - the applicant offered employment, transfer or promotion, contingent on acceptable results of a criminal background check and other reviews required for the position by the university such as financial/credit checks, degree transcripts or license documentation, or student loan status. Faculty receiving tenure or promotions in rank are not considered applicants.
3.7 Reasonable Cause - where the known facts and circumstances are sufficient to warrant that a person of reasonable prudence would believe that the employee poses an unreasonable risk to persons or property, including, but not limited to, circumstances where individuals are charged with felonies or serious misdemeanors.
3.8 Security Sensitive Positions – in the judgment of the appropriate administrator (President, Vice President or Provost), positions whose duties require, provide for, or encompass the potential to incur human, financial or property loss or other harm to the university and its constituents. To be considered security sensitive the position must include one or more of the following characteristics:
3.8.1 access to children, including those in a child care center, or to diminished capacity adults;
3.8.2 significant contact with persons under the age of 21;
3.8.3 relationships with students where exceptional trust and responsibility are involved, such as counselors, health care providers, coaches, and residence hall personnel;
3.8.4 responsibility for providing direct medical care, treatment, or counseling and/or access to pharmaceuticals, toxins, hazardous or controlled substances;
3.8.5 direct access to laboratory materials and other property that have the potential of being diverted from their proper use either for financial gain or for harmful, dangerous or illegal purposes;
3.8.6 decision making authority for committing university funds or financial resources through contracts and commitments and/or direct access to or responsibility for handling cash, checks, credit/debit cards or cash equivalents, university property, disbursements or receipts;
3.8.7 access to building and residence hall master control and key systems;
3.8.8 access to confidential information or sensitive personal information such as employment, health, donor, financial and other records, including data that could facilitate identity theft;
3.8.9 access to and responsibility for the maintenance, upgrading, and repair of the university's computer networks and/or information technology systems; and
3.8.10 responsibility for police, security, guard forces, or other significant health or safety issues.
3.8.11 work in a particular department which may be subject to additional restrictions, requirements, laws or regulations.
3.9 Serious Misdemeanors - Crimes less serious than felonies, including crimes which may have originally been charged as felonies, but which have been reduced from felonies by courts of competent jurisdiction. For purposes of this policy, the following four categories of misdemeanors are relevant:
3.9.1 Crimes of Violence: which include, but are not limited to, offenses that involve a risk of physical injury to another person;
3.9.2 Drug Offenses: which include, but are not limited to, offenses involving manufacturing, distributing, possessing or using a controlled substance, including drug related DUIs and possession of drug related paraphernalia;
3.9.3 Property Offenses: which include, but are not limited to, offenses that involve fraud or the unlawful taking, destruction, sale and/or receipt of property, be it personal or public; and
3.9.4 Sexual Misconduct Offenses: which include, but are not limited to, offenses that involve any illegal act of a sexual nature, involving illegal physical contact for the gratification of lust and/or engaging in other illegal activities for the purpose of sexual arousal.
3.10 Significant Contact - an employment position involves significant contact with persons under the age of 21 if there is a reasonable expectation that in the course of the normal, routine responsibilities of the position, the employee and a person under the age of 21 would interact on a one-on-one basis more often than occasionally. For example, teachers with office hour consultations, mentors, counselors, test center employees, coaches, and advisors could all reasonably expect to interact one-on-one with students as a normal, routine part of their work and hence would have "significant contact" with one or more persons under the age of 21 during the course of their employment.
4.1 CRIMINAL BACKGROUND SELF-REPORTING:
4.1.1 APPLICANTS: At the time of application for employment, transfer or promotion, every applicant shall report all convictions of felonies and misdemeanors. The failure of an applicant to report his/her criminal background or reporting false information may be grounds for rejection from employment.
4.1.2 SELF-REPORTING BY CURRENT EMPLOYEES: If a current employee is charged with or convicted of a felony or serious misdemeanor, she or he must report such information to his or her supervisor or the Human Resources office within 72 hours of the occurrence, or before that employee returns to work after incarceration. If a charge or conviction is reported to the individual’s supervisor, the supervisor shall immediately report the information to the Human Resources office. Failure of an employee to self-report or the misreporting of a charge or conviction shall be grounds for disciplinary action. This section is operational as of the effective date of the policy and applies to all employees who are charged or convicted of a charge on or after that date. This section does not apply where individuals were charged or convicted prior to application for employment, except where disclosure was required by prior policy in place at the time.
4.2 BACKGROUND CRIMINAL INVESTIGATIONS: The university shall conduct criminal background checks on individuals as described below:
4.2.1. applicants who self-report convictions of one or more felonies or serious misdemeanors;
4.2.2 final applicants for employment positions which are considered to be security sensitive by the president or vice president supervising that area; and
4.2.3. current employees, where the vice president supervising that area, in agreement with the AVP of Human Resources, finds that reasonable cause (as defined in section 3.7, above) exists.
4.3 WRITTEN RELEASE OF INFORMATION - For applicants and final applicants for employment, as defined in section 3.1, above, the university shall obtain a written and signed release of information for a criminal history background check and any other consumer report which may reasonably be required for the position. When the university performs criminal background checks on existing employees, the university shall request written and signed releases of information. Refusal to grant this request may result in disciplinary action.
4.4 NOTICE A BACKGROUND CHECK HAS BEEN REQUESTED - If the existing employee does not provide a written and signed release as requested pursuant to 4.3, the employee shall receive written notice that the background check has been requested.
4.5 FINGERPRINT BACKGROUND CHECK - An applicant or employee subject to a criminal background check under this section may be required to be fingerprinted and consent to a fingerprint background check by the Utah Bureau of Criminal Identification, the Federal Bureau of Investigation or another government or commercial entity.
4.6 PROTECTION OF PRIVACY - Information from criminal background self-reports and criminal background checks will be handled to protect the privacy of those involved. That information will be available only to those persons involved in making employment decisions or performing the background investigation, and the information will be used only for the purpose of making an employment decision. Records containing criminal background information will be classified as "private" under the Government Records Access and management Act for purposes of this policy.
4.7 CONSUMER-REPORTING AGENCY CRIMINAL HISTORY BACKGROUND CHECK - The university may determine to use a consumer-reporting agency to conduct a criminal history background check instead of, or in addition to, a fingerprint background check.
4.7.1 MINIMUM REQUIREMENTS - If a consumer reporting agency is used, at a minimum, the consumer-reporting agency must conduct an investigation to verify the applicant, final applicant or employee's social security number, obtain information regarding past employment, and search the individual's criminal background nationwide in the individual's counties of residence for the last seven years.
4.8 INITIAL SCREENING - Upon receipt of an individual’s criminal background, the university may make an initial determination that an individual with a criminal history should be considered eligible to obtain or retain the position or that additional documentation should be required. Individuals deemed ineligible will be notified of their opportunity to respond, as outlined in Section 4.9. Individuals who are current employees may be placed on suspension until the review is complete.
4.9 OPPORTUNITY TO RESPOND - Before an applicant or final applicant is denied employment or an employee is subjected to an adverse employment action based on information obtained in the criminal background report, the applicant, final applicant or employee shall be given the opportunity to review a copy of the report, written notice of the reasons for denial or the adverse action, and shall have an opportunity to respond to the reasons and any information received as a result of the criminal background check. If an applicant, final applicant, or employee disagrees with the accuracy of any information in the report or believes that, although accurate, their criminal history should not disqualify them for employment, and notifies the AA/EO office of the university within three (3) business days of his/her receipt of the report, the university shall provide a reasonable opportunity to address the information contained in the report.
4.10 RISK ASSESSMENT - The University will assess the overall risk to persons and property based on the convictions disclosed by the criminal background check and other information submitted or discovered. That risk assessment will include: (1) the number of crimes committed, (2) the severity of those crimes, (3) the length of time since they were committed, (4) the likelihood of recidivism, (5) the security sensitivity of the position sought by the applicant or final applicant or held by the existing employee, and (6) other factors that may be relevant. The university may determine that an individual with a criminal history should be considered eligible to obtain or retain the position, or that additional documentation should be required, or that they are ineligible for employment.
4.11 BACKGROUND REVIEW COMMITTEE - A committee shall review responses described in Section 4.9 from those upon whom the university has performed criminal background checks. The committee will perform risk assessments in accordance with this policy.
4.12 APPEALS – Appeals of decisions of the Background Review Committee for current employees based on due process claims may be made as set forth in PPM 3-31, Staff Employee Grievances (with provision for certain hourly employees) and PPMs 9-9 through 9-14, Academic Freedom, Rights, Responsibilities and Due Process.
4.13 FINANCIAL/CREDIT CHECK - If a final applicant is applying for, or an employee holds, a security sensitive position with access to sensitive personal information or financial responsibilities over the funds of the university or others, the vice president supervising that area may require an additional financial/credit check to be performed.
4.14 DEGREE TRANSCRIPTS OR LICENSE DOCUMENTATION - if the position requires a degree or license, the university may obtain a copy of the final applicant's degree transcripts or license documentation.
4.15 STUDENT LOAN STATUS - If an final applicant or employee has a student loan, the university may check on the loan status. The university may deny employment or take adverse employment action if the final applicant or employee has a delinquent or defaulted student loan.
4.16 CONCURRENT ENROLLMENT FACULTY - University employees, whether full-time or adjunct faculty, who are concurrent enrollment instructors with unsupervised access to K-12 students shall complete a criminal background check consistent with Utah Code Annotated § 53A-3-410. The institution employing a concurrent instructor who is also a university employee shall have responsibility to determine the need for the criminal background check consistent with the law, shall satisfy this requirement, and shall maintain appropriate documentation. (See Policy and Procedures R165, Concurrent Enrollment, paragraph 9.2.) This document requirement is effective immediately.