Implementation of the Private Security Officer Employment Authorization Act of 2004

Act authorizes fingerprint-based criminal history check for prospective guards

   b. Before an authorized employer may request a criminal history record check from a participating state, the authorized employer must execute a certification to the state, developed by the State Identification Bureau (SIB) or the relevant state agency for purposes of accepting requests for these background checks, declaring that it is an authorized employer that employs private security officers; that all fingerprints and requests for criminal history background checks are being submitted for private security officers; that it will use the information obtained as a result of the state and national criminal history record checks solely for the purpose of screening its private security officers; and that it will abide by other regulatory obligations. To help ensure that only legitimate use is made of this authority, the certification shall be executed under penalties of perjury, false statement, or other applicable state laws. The authorized employer will provide a copy of the certification to the appropriate state agency. The FBI will develop a model certification form that participating States may use for this purpose.

   c. Section 6402 and the interim rule require that an authorized employer obtain the written consent of an employee to submit the employee's fingerprints to the SIB to perform a search of the criminal records. Such consent should clearly indicate the employee's willingness to undergo a fingerprint-based criminal history record check for the purpose of employment as a private security officer and be provided not more than one year prior to the date the check is requested. In light of the triennial auditing cycle maintained by the FBI and the States, the authorized employer must retain such consent forms for no less than three years from the date when the consent was last used as a basis for a records check request.

   d. The Act provides legal authority for a criminal history record check--the check is permissive, not mandatory. Subject to any contrary requirements of a particular jurisdiction, an employer may forego requesting a check or may provide interim employment during the pendency of a check. The Act does not compel an adverse or favorable employment determination based upon the results of the check. Nor does a favorable section 6402 check guarantee employment or provide an applicant or an employee any legal right or entitlement.

   e. In States that do not have state standards for a private security officer, section 6402(d)(1)(D)(ii)(I)(aa) permits notification of the fact of "conviction" of certain crimes to an employer. In light of the Act's silence as to the impact of post-conviction relief, the legal import of the various forms of post-conviction relief shall be determined by applying the law of the convicting jurisdiction.

   f. Section 6402(d)(1)(D) contains two periods for considering relevant criminal conduct--ten years from convictions for non-felony crimes involving "dishonesty or a false statement" or "the use or attempted use of physical force," and 365 days for a charge for a felony that remains unresolved. The statute is silent as to the date from which such periods should commence. Although the date of submission by an employer or state agency and the date of processing by the SIB and FBI may vary for several reasons (including whether the submission is in manual or electronic form), the date of fingerprint capture is static. Hence, for uniform application of this federal statute, these periods should be considered to commence in reference to the date the fingerprints were taken.

   Pursuant to section 6402(d)(1)(D), a State that does not have "standards for qualifications to be a private officer * * * shall notify an authorized employer as to the fact of whether an employee has been * * * charged with a criminal felony for which there has been no resolution during the preceding 365 days." The regulation clarifies that an employee shall be considered "charged with a criminal felony for which there has been no resolution during the preceding 365 days" if the individual is the subject of a complaint, indictment, or information, issued within 365 days of the date that the fingerprints were taken, for a crime punishable by imprisonment for more than one year.