§ 9:3A-14 — Criminal history record information check for certain employees.

14. The Department of Children and Families shall not employ any individual as a direct care staff member unless the Commissioner of Children and Families has first determined, consistent with the requirements and standards of this section, that no criminal history record information exists on file in the Federal Bureau of Investigation, Identification Division, or in the State Bureau of Identification in the Division of State Police, which would disqualify that individual from being employed at the department. A criminal history record background check shall be conducted at least once every two years for an individual employed as a direct care staff member. As used in this section, "direct care staff member" means an individual employed at the department in a position which involves unsupervised, regular contact with individuals receiving services from the department. a. An individual shall be disqualified from employment as a direct care staff member if that individual's criminal history record check reveals a record of conviction of any of the following crimes and offenses: (1) In New Jersey, any crime or disorderly persons offense: (a) involving danger to the person, meaning those crimes and disorderly persons offenses set forth in N.J.S.2C:11-1 et seq., N.J.S.2C:12-1 et seq., N.J.S.2C:13-1 et seq., N.J.S.2C:14-1 et seq. or N.J.S.2C:15-1 et seq.; or (b) against the family, children or incompetents, meaning those crimes and disorderly persons offenses set forth in N.J.S.2C:24-1 et seq.; or (2) In any other state or jurisdiction, of conduct which, if committed in New Jersey, would constitute any of the crimes or disorderly persons offenses described in paragraph (1) of this subsection. b. Notwithstanding the provisions of subsection a. of this section to the contrary, no individual shall be disqualified from employment under this act on the basis of any conviction disclosed by a criminal history record check performed pursuant to this section if the individual has affirmatively demonstrated to the Commissioner of Children and Families clear and convincing evidence of his rehabilitation. In determining whether an individual has affirmatively demonstrated rehabilitation, the following factors shall be considered: (1) The nature and responsibility of the position which the convicted individual would hold; (2) The nature and seriousness of the offense; (3) The circumstances under which the offense occurred; (4) The date of the offense; (5) The age of the individual when the offense was committed; (6) Whether the offense was an isolated or repeated incident; (7) Any social conditions which may have contributed to the offense; and (8) Any evidence of rehabilitation, including good conduct in prison or in the community, counseling or psychiatric treatment received, acquisition of additional academic or vocational schooling, successful participation in correctional work-release programs, or the recommendation of persons who have had the individual under their supervision. c. If a prospective direct care staff member refuses to consent to, or cooperate in, the securing of a criminal history record background check, the commissioner shall not consider the individual for employment as a direct care staff member. The prospective staff member shall, however, retain any available right of review by the Civil Service Commission. d. If a current direct care staff member refuses to consent to, or cooperate in, the securing of a criminal history record background check, the commissioner shall immediately remove the individual from his position as a direct care staff member and terminate the individual's employment. The staff member shall, however, retain any available right of review by the Civil Service Commission. e. Notwithstanding the provisions of subsection a. of this section to the contrary, the department may provisionally employ an individual as a direct care staff member for a period not to exceed six months if that individual's State Bureau of Identification criminal history record background check does not contain any information that would disqualify the individual from employment at the department and if the individual submits to the commissioner a sworn statement attesting that the individual has not been convicted of any crime or disorderly persons offense as described in this section, pending a determination that no criminal history record background information which would disqualify the individual exists on file in the Federal Bureau of Investigation, Identification Division. An individual who is provisionally employed pursuant to this subsection shall perform his duties under the direct supervision of a superior who acts in a supervisory capacity over that individual until the determination concerning the federal information is complete. f. All applicants or current direct care staff members from whom criminal history record background checks are required shall submit their fingerprints in a manner acceptable to the commissioner. The commissioner is authorized to exchange fingerprint data with and receive criminal history record information from the Federal Bureau of Investigation and the Division of State Police for use in making the determinations required by this section. No criminal history record background check shall be performed pursuant to this section unless the applicant shall have furnished his written consent to the check. g. (1) Upon receipt of an applicant or direct care staff member's criminal history record information from the Federal Bureau of Investigation or the Division of State Police, as applicable, the commissioner shall notify the applicant or staff member, in writing, of the applicant's or staff member's qualification or disqualification for employment under this act. If the applicant or staff member is disqualified, the conviction or convictions which constitute the basis for the disqualification shall be identified in the written notice. (2) The applicant or staff member shall have 30 days from the date of written notice of disqualification to petition the commissioner for a hearing on the accuracy of the criminal history record information or to establish his rehabilitation under subsection b. of this section. The commissioner may refer any case arising hereunder to the Office of Administrative Law for administrative proceedings pursuant to P.L.1978, c.67 (C.52:14F-1 et al.). (3) The commissioner shall not maintain any individual's criminal history record information or evidence of rehabilitation submitted under this section for more than six months from the date of a final determination by the commissioner as to the individual's qualification or disqualification to be a direct care staff member pursuant to this section. h. The commissioner shall initiate a criminal history record background check on all prospective direct care staff members. Current direct care staff members who have had a criminal history record background check conducted and stored in a manner approved by the commissioner shall have up to two years from the effective date of this act until the next criminal history background check is conducted. i. The department shall assume the cost of all criminal history record background checks conducted on current and prospective direct care staff members. L.2006, c.47, s.14; amended 2008, c.29, s.85.