4-46: Background Check Policy

Policy Overview

This policy establishes and describes the circumstances under which Santa Fe Community College (SFCC or College) shall conduct background checks and how those checks shall be used for hiring and continued employment. This policy is effective upon SFCC Governing Board approval. Current employees will be grandfathered in and will not require a background check if hired prior to the approval of this policy.

Scope and Applicability

1. This policy applies to the hiring or rehiring of all employees including adjuncts.
2. This policy applies to the promotion or transfer of any current SFCC employees into sensitive positions.
3. Volunteers, interns, and contractors who have been identified as performing functions similar to those of employees occupying a position requiring a background check are subject to the provisions of this policy.

Policy Statement

This policy explains the process that the College will follow in obtaining sensitive and confidential information on background checks and other applicable verifications for all employees of SFCC. Any findings of criminal convictions will not automatically disqualify a Candidate but may disqualify a Candidate for certain positions, to be determined on a case-by­ case basis as set forth in this policy. Contract employees may require specific background checks.

Definitions

1. Candidate is an applicant who is the selected finalist and has been offered a position on a contingent basis, depending on the outcome of the background check for the position for which they have applied.
2. Criminal Conviction is a conviction on a felony charge or a misdemeanor involving moral turpitude.
3. Hiring official is the administrative official seeking to fill a vacant position.
4. Employee – Sensitive Position Includes any employee reporting directly to the President, members of the President’s cabinet and any other employee who, due to the nature of their position, is most appropriately hired under an Employment Contract.
5. Youth Camp means a program that: A.) is operated by or on the College campus; B.) offers recreational , athletic, or educational activities for at least five (5) campers who: • are not enrolled at the institution; • attend or temporarily reside at the camp for all or part of at least four (4) days; and C.) is not a day camp or youth camp required to be licensed by the Department of Family and Protective Services.

Policy Process

1. Applicants for Employment, Promotions, and Position Transfers
   1. SFCC shall conduct a background check appropriate to the position, sex offender registration check, and a driving background check if applicable, on all new hires and re-hires for full time faculty and staff employees, part-time, adjunct faculty or temporary personnel. Certain findings may not be a barrier to employment.
   2. All advertisements, notices, and postings for all jobs at the College will state: “A background check will be conducted according to the nature of the job.”
   3. The background check will not be conducted until an applicant becomes a Candidate.
   4. A consent form must be signed and received from the Candidate before the background check is performed.
   5. Candidates may not work in a full-time position until a satisfactory background check has been received which will include a sex offender registration check.
   6. Any Candidate who does not agree to a background check as defined for the position for which they apply will not be considered for employment.
   7. There shall be no question regarding criminal convictions on an initial application for employment.
   8. The College is committed to working with Candidates. A criminal conviction will not preclude hiring for certain positions based on the nature of the offense. In most cases, offenses that occurred ten or more years ago will not bar applicants from employment.
   9. SFCC positions will undergo a multi-state background check conducted through the NM State Police Office or Courts System records as applicable. A third party vendor may be contracted to facilitate the background checks.
   10. In addition to the NM statewide background check, all Kids Campus positions require an FBI background check, including a finger print check which is conducted through the Children, Youth and Family Department (CYFD) Office in conjunction with the NM State Police.
   11.  Adjunct faculty will be allowed to work as a provisional hire pending a positive outcome on the background check.
   12. All current SFCC employees who are selected as the final Candidate to transfer to a sensitive position from a position where no background check was performed before hiring will have a background check conducted.
   13. Current employees will not be considered for a promotion or transfer for a sensitive position if they do not submit to a background check.
   14. The College may rely on a background check conducted by SFCC within the past thirteen (13) months if there is not a break in service of more than thirteen (13) months and the background check relied on is appropriate for the position sought. Adjunct faculty must not have a break in service of more than eighteen (18) months.
   15. Exceptions
       1. A background check will not be obtained for the following:
          1. On former employees with a break in service of less than 180 days;
          2. Position reclassifications that result in a title change with no change in current responsibilities.
2. Kids Campus
   1. In addition to fully complying with all applicable state and federal laws relating to background checks, including without limitation the New Mexico Children’s and Juvenile Facility and Program Criminal Screening Act, NMSA 1978, § 32A-l 5-l to -4, the following provisions apply to the SFCC Kids Campus.
      1. Fingerprint Checks;
      2. Kids Campus will ensure that background checks are conducted prior to permitting the individual to work or spend time at the center and at least every two (2) years thereafter for:
         1. Employees
         2. Candidates
         3. Professionals
         4. Interns
         5. Volunteers
         6. Each person who is
            1. counted in child-to-caregiver ratios; or,
            2. has unsupervised access to children in care at the operation.
         7. Each person who will regularly or frequently be staying or working at the center, if the person has
            1. lived in another state any time during the previous five (5) years; or,
            2. there is a reason to suspect criminal history in another state.
            3. The check required under this section applies even if the individual has only supervised access to the children.
      3. Kids Campus will process the background check so that the following background check sources are used as appropriate:
         1. The New Mexico Department of Public Safety (DPS) name and Federal Bureau of Investigation fingerprint-based background check.
         2. A Department of Family and Protective Services (DFPS) central registry check.
         3. A sex offender registration check.
         4. An international check for any applicant who the Director has reason to believe has resided outside the United States after the age of 16 unless the person’s visa issuance or renewal occurred after implementation of the U.S. Patriot Act on October 24, 2011. Reasonable efforts will be used to obtain such check, and it need only be conducted if the individual has lived outside the United States for more than three (3) months.
         5. Kids Campus will ensure that background checks are conducted prior to permitting an individual to work or spend time at the center and at least every two (2) years thereafter for all people who are
            1. not required to have fingerprinting; and,
            2. who will regularly or frequently be present at the center while children are in care.
            3. This applies to but is not limited to volunteers, including parent volunteers, and student observers.
3. Youth camps and youth involved functions
   1. Youth camps will ensure that all employees and final Candidates who will work at the camp, and all volunteers and student observers who will regularly or frequently be at the camp, are subject to a background check at least every two (2) years. The check will be conducted prior to permitting an individual to work, volunteer, or be present.
   2. A consent form must be signed and received from the individuals before the background check is performed.
   3. An international check for any foreign national who the Camp Director has reason to believe lived outside the United States after the age of 14 unless the person’s visa issuance or renewal occurred after implementation of the U.S. Patriot Act on October 24, 2011. Reasonable efforts will be used to obtain such check, and it need only be conducted if the individual has lived outside the United States during the last year.
4. AARP Foundation and other National Service Criminal History Check grant serving employees:
   1. The date of initiation needs to be documented following submission of consent forms.
   2. A written consent from Candidates must be obtained before initiating checks.
   3. The National Sex Offender Public Website (NSOPW) search results must clear each state. If a repository is unavailable, the NSOPW search must be redone until it’s 100% complete.
   4. OHR must initiate State and/or FBI checks before a Candidate begins work or service.
   5. The State Background Checks must go through an approved repository such as the Department of Public Safety or an alternative search procedure approval process. If possible, obtain FBI check through approved state repository.
   6. New employees cannot have a start date until the NSOPW and background checks are complete and clear. If this is not done, SFCC will be responsible for paying the employees for time worked prior to receiving these results. Existing employees are granted a 30 day look back for costs incurred prior to receiving these results.
   7. A new employee may begin working as long as the NSOPW search is completed and the State and/or FBI checks have been initiated. A new employee must have accompaniment while the checks are pending when working or providing service.
   8. Accompaniment may cease once the Candidate has cleared the state or FBI check.
   9. NSOPW, State, and FBI background checks must be reviewed in accordance with Corporation for National and Community Service (CNCS) guidelines and cleared. This must be documented when the Office of Human Resources (OHR) receives the CBC results to maintain and provide confidentiality.
5. Responsibilities
   1. The Executive Director of Human Resources (EDHR) or designee, is responsible for conducting the background check and for reviewing and analyzing criminal history or conviction information obtained, communicating the review and analysis of the information to the appropriate officials in accordance with this policy.
      1. The EDHR or designee will be responsible that the background checks conducted are held to the highest standard of confidentiality in handling sensitive information regarding a candidate’s background check information.
      2. The EDHR will ensure that all background checks are initiated within five (5) business days of receipt of the background check consent form.
   2. OHR is responsible for obtaining the consent form to conduct the background investigation from Candidates for all full-time positions.
   3. OHR is responsible for retaining the background information in a secure place and destroying this information in accordance with this policy.
   4. If the check discloses a criminal record which may result in an adverse employment decision on applicants for all positions, the EDHR or designee, in consultation with the hiring official and the Campus Safety and Security Supervisor or designee, shall be responsible for making the employment determination based upon the background check information. In the case of an adverse employment decision the EDHR is responsible for informing the Candidate in compliance with legal requirements.
6. Criminal convictions
   1. With the exception of positions at the Kids Campus, a Criminal Conviction shall not be a barrier for employment. However, the College may refuse to employ an individual in a position, where
      1. the Criminal Conviction directly relates to the particular employment; or,
      2. where the Criminal Conviction does not relate directly to the employment, but the College determines after investigation that the person so convicted has not been sufficiently rehabilitated to warrant the public trust.
   2. The College shall refuse to employ an individual who applies to work at the Kids Campus with a Criminal Conviction or other criminal history that would be considered an unreasonable risk, as provided under Children’s and Juvenile Facility and Program Criminal Records Screening Act, NMSA 1978, § 32A-15-1 to -4 and Children, Youth and Families Department implementing regulations, NMAC § 8.8.3.
   3. Criminal history record information obtained by the College may be used only for the purpose of making employment or appointment decisions and shall in no way be used to discriminate on the basis of race, color, national origin, religion, sex, disability, age, or any other classification protected by law.
   4. The College, in making employment decisions, will not automatically disqualify all individuals with Criminal Convictions. In the event the investigation reveals Criminal Convictions, it will be determined on a case-by-case basis whether the individual is eligible for the position sought based on factors such as:
      1. Relevancy to the position;
      2. Number of offenses;
      3. Nature of each offense;
      4. Length of time intervening between the offense and the employment decision;
      5. Employment history;
      6. Efforts at rehabilitation; and
      7. Accuracy of the information that the individual provided on the consent form.
   5. Background check information collected under this policy shall be kept in a separate confidential file in the OHR. The information shall be used for the sole purpose of evaluating the Candidate or employee for a full time Faculty, full time Staff position, adjunct faculty position, or a Sensitive Position and shall be disclosed only as permitted or required by law. Adjunct faculty will be allowed to work as a provisional hire pending the results of the background check.
7. Notice Requirement.
   1. OHR will notify the Candidate if an adverse report has been received and notify the applicant of the right, within three (3) business days, to:
      1. explain why it should not affect an employment decision; and,
      2. challenge, in writing, the accuracy and completeness of the report, to submit additional information relating to the criminal record.
   2. If the College receives a report indicating that a current employee has a criminal record, OHR will notify the appropriate officials.
8. Opportunity to Appeal to Adverse Action
   1. For current employees: A challenge to the decision of the College will be subject to standard College grievance procedures in Policy 4-2 Employee Corrective Action and Disciplinary Action.
   2. For external applicants: The decision of the College is final and may not be appealed.
9. Self-reporting
   1. Current employees must report to their supervisor in writing, within five (5) business days, of any criminal no contest plea, guilty plea or criminal convictions, excluding misdemeanor offenses punishable only by fine.
   2. In addition to the reporting required above, Kids Campus employees and individuals involved with Kids Campus who are required to have background checks under this policy must immediately report to their supervisor in writing, within five (5) business days of, any arrests or pending charges for a felony offense, any misdemeanor offense involving domestic violence or child abuse.
   3. The College official receiving a self-report as required under this section must provide the information to OHR and the Campus Safety and Security Supervisor and consult about the individual’s continued suitability for the position.
   4. Information provided by self-report will be subject to verification, as appropriate.
   5. Falsification or omission of criminal record information is subject to standard grievance and disciplinary procedures as applicable. Falsification or omission of records or failure to report as required by this policy or law is a violation of policy and will lead to disciplinary action.
   6. Failure to self-report within the required period is a violation of this policy and may lead to disqualification of an employee from eligibility for their position at the College or disciplinary action as appropriate up to and including termination of employment.

Statement of Accountability and Responsibility

The President, through the EDHR or designee, shall be responsible for enforcing human resources procedures and policies. OHR shall work with the different departments and offices to comply with this policy and develop procedures that will enforce this policy regarding awareness, prevention, and remediation.

OHR shall have the responsibility of identifying and maintaining a list of Sensitive Positions for which background checks will be performed. This list shall be subject to change without notice as authorized and designated by the EDHR.

Authority

Current employees will be grandfathered in and will not require a background check if hired prior to the approval of this policy. However, if an employee is transferred or hired into a sensitive position, a background check will be conducted.
New Mexico Children’s and Juvenile Facility and Program Criminal Screening Act, NMSA 1978, §§ 32A-15-1 to -4
Children, Youth and Families Department implementing regulations, NMAC § 8.8.3 Fair Credit Reporting Act, 15 U.S.C. § 1681

Criminal Offender Employment Act, NMSA 1978, §§ 28-2-1 to -6 Policy 4-2 Employee Corrective Action and Disciplinary Action

Revised and SFCC Governing Board approved: 6/22/2010
Revised and SFCC Governing Board approved: 8/23/2010
Revised SFCC Sensitive Positions: 10/20/2010
Revised and SFCC Governing Board approved: 2/14/2011
Revised and SFCC Governing Board approved: 3/24/2011
Revised and SFCC Governing Board approved: 3/23/2016

View Procedures

Associated Procedures

• Safety Sensitive Positions – Procedures
• Criminal Background Check – Procedures