Bill Text: NY S04862 | 2019-2020 | General Assembly | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relates to fingerprinting and background checks of construction contractors.
Spectrum: Partisan Bill (Democrat 6-0)
Status: (Engrossed - Dead) 2020-01-08 - REFERRED TO CHILDREN AND FAMILIES [S04862 Detail]
Download: New_York-2019-S04862-Amended.html
Bill Title: Relates to fingerprinting and background checks of construction contractors.
Spectrum: Partisan Bill (Democrat 6-0)
Status: (Engrossed - Dead) 2020-01-08 - REFERRED TO CHILDREN AND FAMILIES [S04862 Detail]
Download: New_York-2019-S04862-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 4862--A 2019-2020 Regular Sessions IN SENATE March 27, 2019 ___________ Introduced by Sens. MARTINEZ, THOMAS -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the education law, in relation to background checks and fingerprinting; and to amend the social services law, in relation to statewide central registry clearances by construction contractors The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 3 of section 1125 of the education law, as 2 amended by chapter 363 of the laws of 2018, is amended to read as 3 follows: 4 3. "Employee" shall mean any person: (i) who is receiving compensation 5 from a school or (ii) whose duties involve direct student contact and 6 (a) who is receiving compensation from any person or entity that 7 contracts with a school to provide transportation services to children, 8 or (b) who is an employee of a contracted service provider or worker 9 placed within the school under a public assistance employment program, 10 pursuant to title nine-B of article five of the social services law, or 11 (c) who is receiving compensation from any construction contractor, and 12 consistent with the provisions of such title for the provision of 13 services to such school, its students or employees, directly or through 14 contract. 15 § 2. Paragraph (a-2) of subdivision 3 of section 2854 of the education 16 law is amended by adding a new subparagraph (v) to read as follows: 17 (v) Notwithstanding anything to the contrary in this section, the 18 board of trustees of a charter school shall not be required to oversee 19 the fingerprinting process for employees of a construction contractor so 20 long as they have engaged a construction contractor who has complied 21 with the fingerprinting requirements elsewhere in this chapter. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07679-06-9S. 4862--A 2 1 § 3. Paragraph (a) of subdivision 30 of section 305 of the education 2 law, as amended by chapter 630 of the laws of 2006, is amended to read 3 as follows: 4 (a) The commissioner, in cooperation with the division of criminal 5 justice services and in accordance with all applicable provisions of 6 law, shall promulgate rules and regulations to require the fingerprint- 7 ing of prospective employees, as defined in section eleven hundred twen- 8 ty-five of this chapter, of school districts, charter schools [and], 9 boards of cooperative educational services, and construction contractors 10 and authorizing the fingerprinting of prospective employees of nonpublic 11 and private elementary and secondary schools, and for the use of infor- 12 mation derived from searches of the records of the division of criminal 13 justice services and the federal bureau of investigation based on the 14 use of such fingerprints. The commissioner shall also develop a form for 15 use by school districts, charter schools, boards of cooperative educa- 16 tional services, construction contractors, and nonpublic and private 17 elementary and secondary schools in connection with the submission of 18 fingerprints that contains the specific job title sought or the 19 construction or maintenance project on which the individual will be 20 working, and any other information that may be relevant to consideration 21 of the applicant. The commissioner shall also create or expand the 22 functionality of internet based systems to provide access to 23 construction contractors upon application of the construction contractor 24 to the commissioner to enable them to be able to review fingerprint 25 results and subsequent arrest notifications based on the fingerprint and 26 background check data by logging into a protected web portal, entering 27 in the employee name and social security number, which would provide 28 access to see the fingerprint results. The commissioner shall also 29 establish a form for the recordation of allegations of child abuse in an 30 educational setting, as required pursuant to section eleven hundred 31 twenty-six of this chapter. No person who has been fingerprinted pursu- 32 ant to section three thousand four-b of this chapter or pursuant to 33 section five hundred nine-cc or twelve hundred twenty-nine-d of the 34 vehicle and traffic law and whose fingerprints remain on file with the 35 division of criminal justice services shall be required to undergo fing- 36 erprinting for purposes of a new criminal history record check. This 37 subdivision and the rules and regulations promulgated pursuant thereto 38 shall not apply to a school district within a city with a population of 39 one million or more. 40 § 4. The opening paragraph of paragraph (b) of subdivision 30 of 41 section 305 of the education law, as amended by chapter 630 of the laws 42 of 2006, is amended to read as follows: 43 The commissioner, in cooperation with the division of criminal justice 44 services, shall promulgate a form to be provided to all such prospective 45 employees of school districts, charter schools, boards of cooperative 46 educational services, construction contractors and nonpublic and private 47 elementary and secondary schools that elect to fingerprint and seek 48 clearance for prospective employees that shall: 49 § 5. Paragraph (d) of subdivision 30 of section 305 of the education 50 law, as amended by chapter 630 of the laws of 2006, is amended to read 51 as follows: 52 (d) The commissioner shall develop forms to be provided to all school 53 districts, charter schools, boards of cooperative educational services, 54 construction contractors and to all nonpublic and private elementary and 55 secondary schools that elect to fingerprint their prospective employees,S. 4862--A 3 1 to be completed and signed by prospective employees when conditional 2 appointment or emergency conditional appointment is offered. 3 § 6. Subdivision 31 of section 305 of the education law, as added by 4 chapter 380 of the laws of 2001, is amended to read as follows: 5 31. The commissioner shall direct that each school district, charter 6 school, [and] private elementary and secondary school, and construction 7 contractor appoint a designated educational official for the purposes 8 set forth in section 380.90 of the criminal procedure law, subdivision 9 seventeen of section 301.2 and subdivision three of section 380.1 of the 10 family court act. In addition, the commissioner shall promulgate rules 11 and regulations, in consultation with the office of court adminis- 12 tration, to facilitate electronic access by the courts to the names and 13 addresses of such designated educational officials. 14 § 7. Subdivision 1 of section 3035 of the education law, as amended by 15 chapter 630 of the laws of 2006, is amended to read as follows: 16 1. [The] Prior to the awarding of a contract to perform services, the 17 commissioner shall submit to the division of criminal justice services 18 two sets of fingerprints of prospective employees as defined in subdivi- 19 sion three of section eleven hundred twenty-five of this chapter 20 received from a school district, charter school or board of cooperative 21 educational services, construction contractors and of prospective 22 employees received from nonpublic and private elementary and secondary 23 schools pursuant to title two of this chapter, and the division of crim- 24 inal justice services processing fee imposed pursuant to subdivision 25 eight-a of section eight hundred thirty-seven of the executive law and 26 any fee imposed by the federal bureau of investigation. The division of 27 criminal justice services and the federal bureau of investigation shall 28 forward such criminal history record to the commissioner in a timely 29 manner. For the purposes of this section, the term "criminal history 30 record" shall mean a record of all convictions of crimes and any pending 31 criminal charges maintained on an individual by the division of criminal 32 justice services and the federal bureau of investigation. All such crim- 33 inal history records sent to the commissioner pursuant to this subdivi- 34 sion shall be confidential pursuant to the applicable federal and state 35 laws, rules and regulations, and shall not be published or in any way 36 disclosed to persons other than the commissioner, unless otherwise 37 authorized by law. 38 § 8. Subdivision 3 of section 3035 of the education law, as amended by 39 section 7 of chapter 630 of the laws of 2006, is amended to read as 40 follows: 41 3. (a) Clearance. (i) After receipt of a criminal history record from 42 the division of criminal justice services and the federal bureau of 43 investigation the commissioner shall promptly notify the appropriate 44 school district, charter school, board of cooperative educational 45 services, construction contractors or nonpublic or private elementary or 46 secondary school whether the prospective employee to which such report 47 relates is cleared for employment or for access to the proposed project 48 to perform construction and/or maintenance work based upon his or her 49 criminal history. All determinations to grant or deny clearance for 50 employment pursuant to this paragraph shall be performed in accordance 51 with subdivision sixteen of section two hundred ninety-six of the execu- 52 tive law and article twenty-three-A of the correction law. When the 53 commissioner denies a prospective employee clearance for employment, 54 such prospective employee shall be afforded notice and the right to be 55 heard and offer proof in opposition to such determination in accordance 56 with the regulations of the commissioner.S. 4862--A 4 1 (ii) Notwithstanding any other provisions of law to the contrary, 2 information regarding the results of the investigation of current or 3 prospective employees of construction contractors and subsequent changes 4 in status related to such employees shall be transmitted via an inter- 5 net-based system made available to construction contractors upon appli- 6 cation of the construction contractor to the commissioner where, by 7 logging into a protected web portal and entering in the employee name 8 and social security number, and construction contractors would be able 9 to access fingerprint results, whether the employee first completed a 10 form provided to them by the construction contractors, or received a 11 form previously from a school district, charter school or board of coop- 12 erative educational services. Nothing in this section shall require an 13 employee who has already submitted their fingerprints to the commission- 14 er to have to submit them again, so long as they were not destroyed. 15 (b) Conditional clearance. When the commissioner receives a request 16 for a determination on the conditional clearance of a prospective 17 employee, the commissioner, after receipt of a criminal history record 18 from the division of criminal justice services, shall promptly notify 19 the prospective employee and the appropriate school district, charter 20 school, board of cooperative educational services, construction contrac- 21 tors or nonpublic or private elementary or secondary school that the 22 prospective employee to which such report relates is conditionally 23 cleared for employment or work on a construction or maintenance project 24 based upon his or her criminal history or that more time is needed to 25 make the determination. If the commissioner determines that more time is 26 needed, the notification shall include a good faith estimate of the 27 amount of additional time needed. Such notification shall be made within 28 fifteen business days after the commissioner receives the prospective 29 employee's fingerprints. All determinations to grant or deny conditional 30 clearance for employment pursuant to this paragraph shall be performed 31 in accordance with subdivision sixteen of section two hundred ninety-six 32 of the executive law and article twenty-three-A of the correction law. 33 § 9. Subdivision 3 of section 3035 of the education law, as amended by 34 section 8 of chapter 630 of the laws of 2006, is amended to read as 35 follows: 36 3. After receipt of a criminal history record from the division of 37 criminal justice services and the federal bureau of investigation the 38 commissioner shall promptly notify the appropriate school district, 39 charter school, board of cooperative educational services, construction 40 contractor, or nonpublic or private elementary or secondary school 41 whether the prospective employee to which such report relates is cleared 42 for employment or for access to a proposed project site to perform 43 construction and/or maintenance work based upon his or her criminal 44 history. All determinations to grant or deny clearance for employment or 45 ability to work on a proposed project pursuant to this subdivision shall 46 be performed in accordance with subdivision sixteen of section two 47 hundred ninety-six of the executive law and article twenty-three-A of 48 the correction law. When the commissioner denies a prospective employee 49 clearance for employment, such prospective employee shall be afforded 50 notice and the right to be heard and offer proof in opposition to such 51 determination in accordance with the regulations of the commissioner. 52 § 10. Section 1125 of the education law is amended by adding a new 53 subdivision 11 to read as follows: 54 11. "Construction contractor" shall mean any individual or entity 55 seeking permission either through a bid or otherwise to perform 56 construction and/or maintenance work on facilities occupied at any pointS. 4862--A 5 1 by students of the school district, charter school, board of cooperative 2 educational services, or nonpublic school. 3 § 11. Subdivision 3 of section 424-a of the social services law, as 4 amended by section 14-a of part H of chapter 56 of the laws of 2019, is 5 amended to read as follows: 6 3. For purposes of this section, the term "provider" or "provider 7 agency" shall mean: an authorized agency; the office of children and 8 family services; juvenile detention facilities subject to the certif- 9 ication of the office of children and family services; programs estab- 10 lished pursuant to article nineteen-H of the executive law; non-residen- 11 tial or residential programs or facilities licensed or operated by the 12 office of mental health or the office for people with developmental 13 disabilities except family care homes; including head start programs 14 which are funded pursuant to title V of the federal economic opportunity 15 act of nineteen hundred sixty-four, as amended; early intervention 16 service established pursuant to section twenty-five hundred forty of the 17 public health law; preschool services established pursuant to section 18 forty-four hundred ten of the education law; construction contractors as 19 defined in subdivision eleven of section eleven hundred twenty-five of 20 the education law; special act school districts as enumerated in chapter 21 five hundred sixty-six of the laws of nineteen hundred sixty-seven, as 22 amended; programs and facilities licensed by the office of alcoholism 23 and substance abuse services; residential schools which are operated, 24 supervised or approved by the education department; health homes, or any 25 subcontractor of such health homes, who contracts with or is approved or 26 otherwise authorized by the department of health to provide health home 27 services to all those enrolled pursuant to a diagnosis of a develop- 28 mental disability as defined in subdivision twenty-two of section 1.03 29 of the mental hygiene law and enrollees who are under twenty-one years 30 of age under section three hundred sixty-five-l of this chapter, or any 31 entity that provides home and community based services to enrollees who 32 are under twenty-one years of age under a demonstration program pursuant 33 to section eleven hundred fifteen of the federal social security act; 34 publicly-funded emergency shelters for families with children, provided, 35 however, for purposes of this section, when the provider or provider 36 agency is a publicly-funded emergency shelter for families with chil- 37 dren, then all references in this section to the "potential for regular 38 and substantial contact with individuals who are cared for by the agen- 39 cy" shall mean the potential for regular and substantial contact with 40 children who are served by such shelter; and any other facility or 41 provider agency, as defined in subdivision four of section four hundred 42 eighty-eight of this chapter, in regard to the employment of staff, or 43 use of providers of goods and services and staff of such providers, 44 consultants, interns and volunteers. 45 § 12. Paragraph (a) of subdivision 2 of section 390-a of the social 46 services law, as amended by chapter 416 of the laws of 2000, is amended 47 to read as follows: 48 (a) review and evaluate the backgrounds of and information supplied by 49 any person applying to be a child day care center or school-age child 50 care program employee or volunteer or group family day care assistant, a 51 provider of family day care or group family day care, or a director of a 52 child day care center, head start day care center or school-age child 53 care program or a construction contractor, or a construction contrac- 54 tor's employee who services any of these entities. Such procedures shall 55 include but not be limited to the following requirements: that the 56 applicant set forth his or her employment history, provide personal andS. 4862--A 6 1 employment references; submit such information as is required for 2 screening with the statewide central register of child abuse and 3 maltreatment in accordance with the provisions of section four hundred 4 twenty-four-a of this article; sign a sworn statement indicating wheth- 5 er, to the best of his or her knowledge, he or she has ever been 6 convicted of a crime in this state or any other jurisdiction; and 7 provide his or her fingerprints for submission to the division of crimi- 8 nal justice services in accordance with the provisions of section three 9 hundred ninety-b of this title. Notwithstanding the provisions of this 10 paragraph, where a program has people working on their premises through 11 a construction contractor as defined in subdivision eleven of section 12 eleven hundred twenty-five of the education law and such construction 13 contractor has properly performed checks on its employees as a provider 14 or provider agency under section four hundred twenty-four-a of this 15 chapter, then such program does not need to run the check itself on the 16 construction contractor employees working on their site; 17 § 13. This act shall take effect immediately; provided however that: 18 (a) the amendments to section 1125 of the education law made by section 19 one of this act shall take effect on the same date and in the same 20 manner as chapter 363 of the laws of 2018, takes effect; (b) the amend- 21 ments to paragraph (a-2) of subdivision 3 of section 2854 of the educa- 22 tion law made by section two of this act shall not affect the expiration 23 of such paragraph and shall expire and be deemed repealed therewith; (c) 24 the amendments to paragraph (d) of subdivision 30 of section 305 of the 25 education law made by section five of this act shall not affect the 26 repeal of such paragraph and shall be deemed repealed therewith; and (d) 27 the amendments to subdivision 3 of section 3035 of the education law 28 made by section eight of this act shall be subject to the expiration and 29 reversion of such subdivision, pursuant to section 12 of chapter 147 of 30 the laws of 2001, as amended, when upon such date the provisions of 31 section nine of this act shall take effect.