Implementation of the Private Security Officer Employment Authorization Act of 2004

Act authorizes fingerprint-based criminal history check for prospective guards


   m. Section 6402(d)(1)(A) of the Act provides that an authorized employer "may submit to the state identification bureau of a participating State" a request for a criminal history background check of a private security guard employee pursuant to the Act. Although the law does not specify to which participating State the authorized employer is required to submit the request, it is generally expected that an authorized employer will seek background checks on its employee in the state of employment. Some States, however, may opt out from participating in this background check system even where they have no applicable Public Law 92-544 statute authorizing state and national fingerprint-based criminal history checks of prospective and current private security officers. In addition, some participating states may take time to set up a process to accept and process the checks under these regulations. To allow for the possibility of checks authorized by the Act being done in these circumstances, the interim rule provides that if an authorized employer is prevented from submitting an employee's fingerprints because the employee's employment is (1) in a State that does not have an applicable Public Law 92-544 statute authorizing state and national fingerprint-based criminal history checks of prospective and current private security officers and that has elected to opt out, or (2) in a participating state that does not yet have a process for accepting such fingerprint submissions under these regulations, then the employer may submit the employee's fingerprints to the SIB of another participating State other than the state of employment provided it obtains the permission of the accommodating state. Such an arrangement would be voluntary, could involve the imposition of additional requirements by the alternative state as a condition to agreeing to do the out-of-state checks, and would discontinue once the State where the private security guard is employed makes available a process for doing these checks. Conducting a national check through an alternative state where possible may be preferable to no check at all. Conducting the check through the state of employment is, however, generally preferable inasmuch as such states are more likely to have records on a subject not available at the FBI than an alternative state with which an employee has had no contact.

   n. Although not required by the statute, States are encouraged to explore the beneficial use of (1) electronic/livescan fingerprint capture and submission, and (2) channeling agents to transmit fingerprints to the FBI and the results of the criminal history checks to the States.

(Federal Register -- 01/12/06)