CHAPTER 200

FORMERLY

SENATE BILL NO. 132

AS AMENDED BY SENATE AMENDMENT NOS. 1 AND 2 AND HOUSE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 11 AND TITLE 19 OF THE DELAWARE CODE RELATING TO EMPLOYMENT PRACTICES AND QUALITY IN HIRING.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE DELAWARE:

Section 1. Amend Chapter 7, Title 19 of the Delaware Code by designating the cur Section 708 as Section 709 and substituting a new Section 708 to read as follows:

"§708. SPECIAL EMPLOYMENT PRACTICES RELATING TO HEALTH CARE AND CHILD CARE FACILITIES

(a) Definitions

(1) 'Person seeking employment' means any person applying for employment in a health care facility or child care facility that affords direct access to persons receiving ca such a facility, or a person applying for licensure to operate a child care facility.

(0) 'Health Care Facility' means any custodial or residential facility where hi nutritional, or personal care is provided for persons, including nursing homes, hospitals, home health care agencies, and adult day care facilities.

(1) 'Child Care Facility' means any child care facility which is required licensed by the Department of Services for Children, Youth, and their Families.

(2) 'Direct Access' means the opportunity to have personal contact with persons receiving care during the course of one's assigned duties.

(b) Service Letter

(1) No employer who operates a health care facility and/or child care facility, or provides health, nutritional, or personal care in such a facility, shall hire any person se employment without obtaining one or more service letters regarding that person, provide( person has been previously employed. The service letter(s) obtained must include a service from the person's current or most recent previous employer. In addition, if a person seeking employment was employed in a health care facility and/or child care facility within the pa (5) years, the employer shall also obtain a service letter from such employer(s). If an the seeking employment has not been previously employed, or was self-employed, then the employer must require the person to provide letters of reference from two adults who are familiar); person, but who are not relatives of the person..

(2) For purposes of this subsection, the required 'service letter' shall be provided by the Department of Labor. The form shall be signed by the current or p. employer and shall contain information about the type of work performed by the employee, the duration of the employment; the nature of the employee's separation from employment; I• reasonably substantiated incidents involving violence, threat of violence, abuse, or neglect, by the person seeking employment toward any other person, including any disciplinary action as a result of such conduct.

(3) Any employer who is required to obtain a service letter for the purpose stated above shall obtain a statement, signed by the person seeking employment wherein the authorizes a full release for the employer to obtain any and all information pertaining to t of his/her current or previous employment.

(4) Any employer who is required to obtain a service letter for the purpose stated above shall obtain a statement, signed by the person seeking employment, wherein the person attests that the information given in the application represents a full and complete disclosure of his/her current and previous employment, and that all information contained in the employment application is true and complete to the best of the knowledge and belief of the person seeking employment. In addition, the application shall contain a written acknowledgment by the person that he/she understands that failure to provide a full and complete disclosure of all information required under this section is a violation of subsection (9) of this section, and that such failure shall result in civil penalties of not less than $1,000 nor more than $5,000 for such violation. Full and complete disclosure by a person seeking employment includes listing all current and previous employers contemplated in (6)(1) of this section. If the person seeking employment was employed by a temporary agency, he or she shall list on the employment application the temporary agency and all employers for which he or she did temporary work pursuant to such employment. Any employer who does not obtain such signed statements from such person shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.

(5) Any employer who receives a written request for a service letter from any other employer for the purpose stated above shall provide that service letter. The service letter shall be provided within ten (10) business days from the date the request is received. Any employer who fails or refuses to provide such service letter, or who fails to make a full and complete disclosure of information, as required, shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for such violation.

(6) Notwithstanding the provisions of subsection (1), when exigent circumstances exist, and an employer covered under (b)(1) of this section must fill a position in order to maintain the required level of service, the employer may hire a person seeking employment on a conditional basis pending the receipt of the required service letter(s). The continued employment of such person pursuant to this subsection shall be contingent upon the receipt of the required service letter(s). In addition, the person hired pursuant to this subsection shall be informed, in writing, and shall acknowledge, in writing, that his/her continued employment is contingent upon the receipt of the required service letter(s).

(7) An employer covered under (b)(1) of this section shall make a good faith attempt to locate the previous employer(s) identified in the employment application of the person seeking employment and to obtain the service letter(s) from each such employer. The burden of proof to demonstrate a good faith attempt shall rest with the employer. Any such employer who hires an a person seeking employment without obtaining the required service letter(s) and/or who has not made a good faith attempt to obtain such service letter(s) shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.

(8) Any individual who falsifies such service letter, or who fails to make a full and complete disclosure of all required information on the service letter shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.

(0) Any individual who fails to make a full and complete disclosure of past employment information on the employment application, shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.

(10) An employer or any person acting on behalf of an employer who discloses information about a current or former employee pursuant to (b)(2) of this section is immune from civil liability for such disclosure and its consequences and may not be made the subject of any legal action for libel, slander or defamation by the current or former employee. Further, notwithstanding any provisions to the contrary, no employer or person seeking employment who has made a good faith effort to comply with the requirements of this section shall be deemed to be liable for any violation of said provisions.

(11) The Department of Labor shall be the only party which can seek enforcement of a civil penalty under this section.

(c) Temporary agencies Any temporary agency responsible for providing temporary employees to a health care facility or child care facility, when such employees qualify as 'persons seeking employment' for purposes of (a)(1) of this section, is considered an employer and is responsible for complying with the requirements of this section."

Section 2. Amend Chapter 85 of Title 11 of the Delaware Code by adding thereto a new section to be designated as §8563, to read as follows:

"§8563. CHILD ABUSE REGISTRY CHECK

(a) Definitions

(1) 'Person seeking employment' means any person applying for any employment in a health care facility or child care facility that affords direct access to persons receiving care at such a facility, or a person applying for license to operate a child care facility.

(0) 'Health Care Facility' means any custodial or residential facility where health, nutritional, or personal care is provided for persons, including nursing homes, hospitals, home health care facilities, and adult day care facilities.

(1) 'Child Care Facility' means any child care facility which is required to be licensed by the Department of Services for Children, Youth, and their Families.

(2) 'Direct Access' means the opportunity to have personal contact with persons receiving care during the course of one's assigned duties.

(b) No employer who operates a health care facility or child care facility shall hire any person seeking employment without requesting and receiving a Child Abuse Registry check for such person. For purposes of this subsection, the Child Abuse Registry check shall relate to substantiated cases of child abuse or neglect reported after August 1, 1994. The results shall be obtained from the Child Abuse Registry, as established by 16 Del. C §905.

(c) Any employer who is required to request a Child Abuse Registry check under this section shall obtain a statement signed by the person seeking employment wherein the person authorizes a full release for the employer to obtain the information provided pursuant to such a check.

() Notwithstanding the provisions of this section, when exigent circumstances exist which require an employer to fill a position in order to maintain the required or desired level of service, the employer may hire a person seeking employment on a conditional basis after the employer has requested a Child Abuse Registry check. The employment of the person pursuant to this subsection shall be conditional and contingent upon the receipt of the Child Abuse Registry check by the employer. Any person hired pursuant to this subsection shall be informed in writing, and shall acknowledge in writing, that his or her employment is conditional, and contingent upon receipt of the Child Abuse Registry check.

(a) The Department of Services for Children, Youth, and their Families shall promulgate regulations giving guidance for a procedure to notify employers of any relevant matters indicated in the Child Abuse Registry check.

(b) Costs associated with providing a Child Abuse Registry check shall be borne by the State.

(g) Any employer who hires a person seeking employment without requesting and receiving a Child Abuse Registry check for such person shall be subject to a civil penalty or not less than $1,000.00 nor more than $5,000.00 for each violation."

Section 3. If any of the provisions of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end, the provisions of this Act are declared to be severable.

Section 4. The Department of Labor shall promulgate regulations providing guidance to employers and applicants regarding the implementation of this Act.

Section 5. This Act shall become effective on January 1, 1998 with the exception of portions of this Act which give administrative agencies and/or bodies the authority to promulgate rules and regulation, which shall become effective immediately upon enactment.

Approved July 17, 1997