House Introduced Bill 5741

HOUSE BILL No. 5741

May 4, 2000, Introduced by Reps. Woronchak, Kukuk, Hart, Birkholz, Julian, Tabor, Mead, Kowall, Pumford, Vander Roest,
Van Woerkom, Howell, DeRossett, Caul, Shackleton, Jelinek, Richardville, Faunce, Bishop, Kuipers, Ehardt, Koetje, Pappageorge,
DeWeese, Geiger, Rick Johnson, Richner, Scranton, LaSata, Jansen, Middaugh, Voorhees, Rocca, Ruth Johnson, Hager, DeVuyst,
Thomas and Rivet and referred to the Committee on Family and Children Services.

A bill to require disclosures of criminal convictions and

certain conduct by certain persons; to require criminal history

checks of certain persons; to require disclosure of child abuse

or child neglect records of certain persons; to regulate the

employment of certain persons; to prescribe the powers and duties

and limit the liability of certain state and local departments

and agencies; and to prescribe penalties.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

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Sec. 1. This act shall be known and may be cited as the

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"child-related employment background check act".

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Sec. 2. As used in this act:

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(a) "Applicant" means a person seeking to become a

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child-related employee or child-related volunteer of a

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child-related employer whom that employer intends to employ or

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use the services of following completion of a background check

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that is satisfactory to the child-related employer.

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(b) "Background check" means both a criminal history check

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and a central registry check of an individual.

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(c) "Central registry case" means that term as defined in

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section 2 of the child protection law, 1975 PA 238, MCL 722.622.

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(d) "Central registry check" means a determination by the

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family independence agency of whether the central registry con-

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tains a record of a central registry case involving a person, as

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provided in section 7 of the child protection law, 1975 PA 238,

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MCL 722.627.

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(e) "Child-related employee" means a child-related

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employer's full-time, part-time, or temporary paid employee. A

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child-related employee includes a family independence agency

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enrolled day care aide and a family independence agency enrolled

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relative care provider.

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(f) "Child-related employer" means a business, organization,

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or association that is licensed or registered by the department

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of consumer and industry services, employs or uses the services

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of a child-related employee or child-related volunteer, and has

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the care of, or supervisory or disciplinary powers over, 1 or

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more children, including but not limited to providers of educa-

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tional, recreational, or similar activities.

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(g) "Child-related volunteer" means a person who is 17 years

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of age or older providing regular voluntary services to a

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child-related employer and who has unsupervised contact with 1 or

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more children as a result of providing those services.

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Child-related volunteer does not include a parent or guardian

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whose child is participating in or attending services or activi-

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ties offered by that child-related employer. As used in this

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subdivision, "regular" means more than once per year.

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(h) "Criminal history check" means a determination, through

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fingerprints and use of the state repository of criminal history

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record information, of whether a person has been convicted of a

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crime.

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(i) "Department" means the department of state police.

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(j) "Employer" means a person who currently employs or uses

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the services of the applicant as an employee or volunteer or has

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previously employed or used the services of the applicant as an

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employee or volunteer.

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(k) "Law enforcement agency" means a sheriff's department or

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the police department of a city, village, or township.

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(l) "Unsupervised contact" means contact with 1 or more

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children by the child-related employee or child-related volunteer

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alone or in the presence of only 1 or more other adults who are

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related to that employee or volunteer. Unsupervised contact does

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not include contact by an employee or volunteer with 1 or more

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children in the presence of 1 or more adults who are unrelated to

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the child-related employee or child-related volunteer.

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Sec. 3. (1) A child-related employer shall obtain from each

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applicant or may obtain from each child-related employee or

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child-related volunteer a signed statement of whether that appli-

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cant, employee, or volunteer has ever been convicted of any of

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the following offenses and, if so, the details of the

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conviction:

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(a) Any crime involving a substantial misrepresentation of

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any material fact, including any of the following:

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(i) Bribery.

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(ii) Fraud.

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(iii) Filing of false claims.

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(iv) Aiding or abetting the filing of false claims.

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(v) Allowing an establishment to be used for illegal

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purposes.

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(b) Any crime involving any of the following:

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(i) Homicide.

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(ii) Murder.

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(iii) Manslaughter.

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(iv) Mayhem.

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(v) Negligent homicide.

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(vi) An attempt to commit any of the offenses specified in

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subparagraphs (i) or (ii) of this subdivision.

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(c) Any crime, involving either of the following:

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(i) Assault.

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(ii) Battery.

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(d) Any crime that involves a violent act, or a threat of a

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violent act, against a person or a crime constituting a sexual

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offense, including any of the following:

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(i) Criminal sexual conduct in any degree.

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(ii) Activity for profit involving any of the following:

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(A) Child abuse, neglect, or exploitation.

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(B) Kidnapping.

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(C) Adoption schemes.

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(D) Prostitution or related crimes.

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(iii) Cruelty toward, or torture of, any person.

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(iv) An attempt to commit any of the offenses specified in

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subparagraph (i) or (iii) of this subdivision.

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(e) Any of the following crimes:

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(i) Robbery.

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(ii) Armed robbery.

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(iii) Burglary.

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(iv) Receiving stolen property.

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(v) Concealing stolen property.

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(vi) Extortion.

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(vii) Obtaining property by false pretenses.

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(viii) Larceny by trick.

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(ix) Larceny by conversion.

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(x) Embezzlement.

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(xi) Arson.

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(xii) Offenses involving narcotics, alcohol, or controlled

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substances that result in a felony conviction.

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(xiii) Offenses involving any of the following:

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(A) Adulterating drugs, controlled substances, or

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preparations.

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(B) Poisoning.

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(C) Unlawful manufacture or delivery of drugs or possession

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with intent to manufacture or deliver drugs.

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(xiv) An attempt to commit any of the offenses specified in

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subparagraph (i), (ii), or (iii) of this subdivision.

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(2) An applicant, child-related employee, or child-related

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volunteer who knowingly or intentionally makes a false statement

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or withholds information in connection with the signed statement

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required under subsection (1) is guilty of a misdemeanor punish-

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able by imprisonment for not more than 180 days or a fine of not

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more than $1,000.00, or both.

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(3) A child-related employee or child-related volunteer who

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violates subsection (2) is also subject to immediate disciplinary

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action, including, but not limited to, discharge.

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Sec. 4. (1) An applicant, child-related employee, or

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child-related volunteer of a child-related employer shall give

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written consent for that employer to conduct a background check.

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The applicant, child-related employee, or child-related volunteer

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giving written consent shall also provide to the department any

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information necessary for the criminal history check portion of

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the background check, including, but not limited to, 1 set of

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fingerprints and date of birth, and to the family independence

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agency any information necessary for the central registry check.

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(2) A child-related employer shall request the department to

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conduct a criminal history check and the family independence

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agency to conduct a central registry check on an applicant,

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child-related employee, or child-related volunteer who has given

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written consent for a background check under subsection (1).

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(3) The department shall conduct the criminal history check

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upon a request submitted under subsection (2). The department

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shall determine the existence of any criminal history in this

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state through use of the state repository of criminal history

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record information. An applicant, child-related employee, or

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child-related volunteer shall provide the 1 set of fingerprints

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necessary for the criminal history check to the department

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through a law enforcement agency that shall comply with 1935 PA

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120, MCL 28.271 to 28.273, and any applicable procedure estab-

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lished by the department for a criminal history check.

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(4) The department shall complete the criminal history check

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and, except as otherwise provided in this subsection, provide the

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results of its determination to the child-related employer and to

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the applicant, child-related employee, or child-related volunteer

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within 21 days after the request is made.

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(5) The family independence agency shall conduct the central

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registry check upon a request submitted under subsection (2).

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The family independence agency shall determine whether the cen-

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tral registry contains a record of a central registry case

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involving the person and provide the results to the child-related

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employer and to the applicant, child-related employee, or

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child-related volunteer within 21 days after the request is

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made.

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(6) A child-related employer may request a background check

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of a parent or guardian who otherwise meets the definition of

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child-related volunteer but whose child is participating in or

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attending services or activities offered by the employer if the

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parent or guardian has or will have care of, or supervisory or

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disciplinary powers over, another child. The parent or guardian

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shall give consent for the background check if requested by the

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child-related employer. The department shall conduct a criminal

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history check as provided in subsections (1), (2), (3), and (4)

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and the family independence agency shall conduct the central reg-

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istry check as provided in subsection (5).

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(7) A child-related employer shall not hire an applicant or

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may dismiss a child-related employee or child-related volunteer

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who does not comply with subsection (1).

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(8) The department shall prescribe the form of the request

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and necessary information for a criminal history check under this

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act and the form for providing the results. The family indepen-

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dence agency shall prescribe the form of the request and neces-

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sary information for a central registry check under this act and

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the form for providing the results.

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(9) A child-related employer may employ or use the services

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of an applicant required to undergo a background check under this

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act before completion of that background check with appropriate

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staff supervision until the background check is complete. If a

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background check reveals a conviction for a crime against a

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child, a conviction for a violent felony, or a record of a cen-

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tral registry case, the child-related employer shall not hire the

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applicant or may dismiss the child-related employee or

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child-related volunteer. If a child-related employer retains a

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child-related employee or child-related volunteer whose back-

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ground check reveals a conviction for a crime listed in section

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3(1) or a record of a central registry case, the child-related

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employer shall notify the parent or guardian of each child who

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uses the employer's services of the fact of the conviction or

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record and the nature of the conviction or record.

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(10) The provisions concerning criminal history checks do

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not apply to an individual required to undergo a criminal history

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or records check under section 1230 or 1230a of the revised

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school code, 1976 PA 451, MCL 380.1230 and 380.1230a, if the

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results of the criminal history and records checks are available

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to the child-related employer.

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Sec. 5. A child-related employee who has a conviction for a

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crime listed in section 3(1) or a record of a central registry

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case shall not receive any payment from the state for providing

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child-related employment services.

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Sec. 6. A child-related employer may conduct the background

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checks required under this act according to the following

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schedule:

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(a) For the calendar year in which this act takes effect,

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the child-related employer shall conduct background checks of

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applicants who apply in that calendar year, child-related employ-

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ees and child-related volunteers who begin in that calendar year,

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and may conduct background checks of child-related employees and

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child-related volunteers who began in the 2 preceding calendar

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years.

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(b) For each subsequent calendar year, the child-related

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employer shall conduct background checks of applicants who apply

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in that calendar year, child-related employees and child-related

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volunteers who begin in that calendar year, and may conduct

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background checks of child-related employees and child-related

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volunteers who began in the 2 calendar years preceding the

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earliest calendar year for which background checks were conducted

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in the preceding calendar year.

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Sec. 7. If a parent or guardian of a child hires or intends

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to hire a person who has or will have the care of, or supervisory

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or disciplinary powers over, the child in that parent's or

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guardian's custody, the parent or guardian may request a back-

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ground check of that person. Upon request, the department shall

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conduct a criminal history check and the family independence

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agency shall conduct a central registry check for the parent or

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guardian as the department or family independence agency would

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for a child-related employer under section 4.

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Sec. 8. (1) Except for a knowing or intentional release of

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false information, the department, the family independence

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agency, a law enforcement agency, and the employees of the

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department, the family independence agency, or law enforcement

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agency have no liability in connection with a background check

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conducted under this act.

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(2) An employer, or an employee acting on behalf of the

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employer, that discloses information under section 5 in good

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faith is immune from civil liability for the disclosure. An

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employer, or an employee acting on behalf of the employer, is

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presumed to be acting in good faith at the time of a disclosure

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under section 5 unless 1 or more of the following is established

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by a preponderance of the evidence:

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(a) The employer or employee knew the information disclosed

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was false or misleading.

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(b) The employer or employee disclosed the information with

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a reckless disregard for the truth.

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(c) A state or federal statute specifically prohibited the

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disclosure.

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Enacting section 1. This act takes effect September 1,

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2000.

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Enacting section 2. This act does not take effect unless

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Senate Bill No. _____ or House Bill No. 5743 (request

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no. 02221'99 a) of the 90th Legislature is enacted into law.

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