(a)Definitions. —(1) “Child care facility” means any child care facility which is required to be licensed by the Department of Education, Office of Child Care Licensing.
(2) “Direct access” means the opportunity to have personal contact with persons receiving care during the course of one’s assigned duties.
(3) “Health care facility” means any custodial or residential facility where health, nutritional or personal care is provided for persons, including long-term care facilities as defined in § 1102 of Title 16, hospitals, home health care agencies, and adult day care facilities.
(4) “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 care at such a facility, or a person applying for licensure to operate a child care facility.
(b)Service letter. —(1) No employer who operates a health-care facility or child-care facility, or provides health, nutritional, or personal care in such a facility, shall hire any person seeking employment without obtaining 1 or more service letters regarding that person, provided such person has been previously employed. The service letter(s) obtained must include a service letter from the person’s current or most recent previous employer. In addition, if a person seeking employment was employed in a health-care facility or child-care facility within the past 5 years, the employer shall also obtain a service letter from such employer(s). If the person seeking employment has not been previously employed, or was self-employed, then the employer must require the person to provide letters of reference from 2 adults who are familiar with the person, but who are not relatives of the person.
(2) For purposes of this subsection, the required “service letter” must be a form provided by the Department of Labor. The form must be signed by the current or previous employer and must 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 and any reasonably substantiated incidents involving violence, threat of violence, abuse, or neglect, by the person seeking employment toward any other person, including any disciplinary action taken as a result of such conduct. In addition to these requirements, service letters for child-care facility employment must do all of the following:
a. Ask a previous employer if they have any concerns about the employee working with children.
b. Ask a previous employer if the employee was warned, reprimanded, suspended, or discharged for any violations found in the Department of Education’s Regulations for Early Care and Education and School-Age Centers [14 DE Admin. Code 933].
(3) Any employer who is required to obtain a service letter 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 any and all information pertaining to the facts of the person’s current or previous employment.
(4) Any employer who is required to obtain a service letter under this section 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 the person’s 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 the person understands that failure to provide a full and complete disclosure of all information required under this section is a violation of paragraph (b)(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 paragraph (b)(1) of this section. If the person seeking employment was employed by a temporary agency, the person shall list on the employment application the temporary agency and all employers for which the person 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 under this section shall provide that service letter. The service letter shall be provided within 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 paragraph (b)(1) of this section, when exigent circumstances exist, and an employer covered under paragraph (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 the person’s continued employment is contingent upon the receipt of the required service letter(s).
(7) An employer covered under paragraph (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 a person seeking employment without obtaining the required service letter(s) 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.
(9) 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 paragraph (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 is the only party which can enforce a civil penalty under this section.
(12) If the Office of Child Care Licensing, as part of any investigation into a child-care facility, reasonably suspects or determines an employer failed to adhere to the requirements of a service letter under this section, the Office of Child Care Licensing shall notify and refer the report with any supporting evidence to the Department of Labor.
(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 paragraph (a)(4) of this section, is considered an employer and is responsible for complying with the requirements of this section.