20-38-103. Criminal history records checks — Applicants and employees of service providers.

20-38-103. Criminal history records checks — Applicants and employees of service providers. (a)(1) Before making an offer of employment, a service provider shall inform an applicant that employment is contingent on the satisfactory results of criminal history records checks. (2) If a service provider intends to make an offer of employment to an applicant, the service provider shall conduct criminal history records checks on the applicant under this section. (3) Except as provided in subdivision (a)(4) of this section, if the service provider can verify that the applicant has lived continuously in the state for the past five (5) years, the service provider shall require the applicant to submit a criminal history records check form and shall, in accordance with the rules of the appropriate licensing or certifying agency: (A) Initiate a state criminal history records check on the applicant with the Identification Bureau of the Division of Arkansas State Police; and (B) Conduct a registry records check on the applicant. (4) If the service provider cannot verify that the applicant has lived continuously in the state for the past five (5) years or if the applicant is seeking employment at a childcare facility as defined by § 20-78-202 or a church-exempt childcare facility as recognized under § 20-78-209, regardless of the length of time that the applicant has lived in the state, the service provider shall require the applicant to submit a criminal history records check form and a complete set of fingerprints and shall: (A) Initiate a state criminal history records check on the applicant with the Identification Bureau of the Division of Arkansas State Police; (B) Initiate a fingerprint-based criminal history records check performed by the Federal Bureau of Investigation on the applicant; and (C) Conduct a registry records check on the applicant. (b) After a service provider satisfies the regulatory requirements of the appropriate licensing or certifying agency governing registry checks of applicants for employment, the service provider may conditionally employ an applicant pending receipt of a determination from the appropriate licensing or certifying agency. (c) If a service provider uses temporary employees to provide care, the service provider shall: (1) Use a contract to detail the requirements for placing temporary employees with the service provider; and (2) Ensure that the contract pertaining to the service provider's use of temporary employees requires the entity providing the temporary employees to comply with the following terms: (A) The entity is responsible for conducting a criminal history records check on each temporary employee under this subchapter before the placement of the temporary employee with the service provider; and (B) The entity shall: (i) Maintain all documentation regarding criminal history records checks for each temporary employee placed with a service provider; (ii) Indicate whether each temporary employee placed with a service provider has been approved or disqualified in accordance with the rules of the appropriate licensing or certifying agency; and (iii) Provide copies of the documentation to the service provider, which shall be made available to the appropriate licensing or certifying agency upon request. (d) A service provider shall inform employees that continued employment is contingent on the satisfactory results of criminal history records checks and shall conduct periodic criminal history records checks on all employees no less than one (1) time every five (5) years. (e)(1)(A) When a service provider initiates a request for a state criminal history records check on an applicant for employment with or an employee of the service provider, the Identification Bureau of the Division of Arkansas State Police shall issue within twenty-four (24) hours an electronic report to the licensing or certifying agency. (B) When a licensing or certifying agency submits a request for a national criminal history records check on an applicant for employment with or an employee of the service provider, the Identification Bureau of the Division of Arkansas State Police shall issue a report to the licensing or certifying agency within ten (10) days after receipt of the results of the national criminal history records check from the Federal Bureau of Investigation. (2) After receipt of a report from the Identification Bureau of the Division of Arkansas State Police, the licensing or certifying agency shall determine whether the applicant or employee is disqualified from employment with the service provider based on the criminal history of the applicant or employee and shall forward its determination to the service provider. (3)(A)(i) If the licensing or certifying agency determines that an applicant or employee is disqualified from employment based on the criminal history of the applicant or employee, the service provider shall deny employment to the applicant or shall terminate the employment of the employee. (ii)(a) If the applicant or employee is disqualified from employment based on the criminal history and the service provider wants to employ the applicant or continue to employ the employee, the service provider shall provide written notice to the licensing or certifying agency of the person's identity and that the service provider has determined that the person is not disqualified from employment because the person satisfies the criteria for a waiver under § 20-38-105(d)(3). (b) After receipt of written acknowledgment from the licensing or certifying agency that the service provider has determined that the applicant or employee is not disqualified from employment because the person satisfies the criteria for a waiver under § 20-38-105(d)(3), the service provider may employ the applicant or continue the employment of the employee. (B) If the licensing or certifying agency issues a determination that an applicant or employee is not disqualified from employment or if there is no criminal history on an applicant or employee, the service provider may employ the applicant or continue the employment of the employee. (f)(1) If the subject of a criminal history records check has been offered employment with a childcare facility or a church-exempt childcare facility, the subject of a criminal history records check shall not be assessed a fee for the statewide criminal history records check required under this section. (2) The subject of a criminal history records check shall be responsible for the payment of any fee associated with the nationwide criminal history records check. (g) A person may challenge the completeness or accuracy of his or her criminal history information under § 12-12-1013.