Preemployment Inquiries Law Summaries
Kansas, Preemployment Inquiries Law Summaries
Employers or prospective employers are prohibited from requiring a person to inspect or challenge any criminal history record information relating to that person for the purpose of obtaining a copy of the person's record in order to qualify for employment (Ch. 22, Art. 47).
The state also has criminal background check laws covering the following employers: adult care homes (Ch. 39, Art. 9); home health care agencies (Ch. 65, Art. 51); and the Department of Administration (H. 2629, L. 2001). Provisions relating to expunged records are located in Sec. 21-4619.
Additionally, Kansas has ratified the National Crime Prevention and Privacy Compact (S. 209, L. 2001).
The full text of these laws is available beginning at Employment Practices Guide ¶17-23,600.01 .
Kansas' job reference liability law is located at Ch. 44, Art. 1 (for full text, see Wages-Hours ¶17-64,051 ). Service letter requirements are located at Ch. 44, Art. 8 (for full text, see Wages-Hours ¶17-64,052 ).
References are to the Kansas Statutes Annotated.
DEFINITIONS
“Adult care home” means any nursing facility, nursing facility for mental health, intermediate care facility for the mentally retarded, assisted living facility, residential health care facility, home plus, boarding care home and adult day care facility, all of which classifications of adult care homes are required to be licensed by the secretary of health and environment (Sec. 39-923(a)(1)).
“Noncriminal justice purposes” means uses of criminal history records for purposes authorized by federal or state law other than purposes relating to criminal justice activities, including employment suitability, licensing determinations, immigration and naturalization matters and national security clearances (S. 209, L. 2001).
WHAT THE EMPLOYER MUST DO
Background checks.-Generally.- It is unlawful for any employer or prospective employer to require a person to inspect or challenge any criminal history record information relating to that person for the purpose of obtaining a copy of the person's record in order to qualify for employment (Sec. 22-4710(a)).
Any person violating this section will be deemed guilty of a class A misdemeanor (Sec. 22-4710(b)).
An employer may require a job applicant or a prospective independent contractor to sign a release allowing the employer to access the applicant's or independent contractor's criminal history record information for purposes of determining the applicant's fitness for employment (Sec. 22-4710(c)).
The Kansas Bureau of Investigation (KBI) may charge an employer a reasonable fee for the preparation of a report detailing such criminal history record information, and may establish a fee schedule or charge varying rates depending upon the quantity of information provided (Sec. 22-4710(d)).
No employer will be liable for any employment decision or decision to enter into a contract with an independent contractor based upon knowledge of such criminal history record information, provided the information that led to the employment or contracting decision reasonably bears upon the independent contractor's, applicant's or employee's trustworthiness, or the safety or well-being of the employer's employees or customers (Sec. 22-4710(f)).
Adult care homes.- No adult care home may use an individual as an unlicensed employee of the adult care home who provides direct, individual care to residents and who does not administer medications unless the facility has inquired of the state registry as to information contained in the registry concerning the individual (Sec. 39-936(5)).
No person may knowingly operate an adult care home if, in the home, there works any person who has been convicted of or has been adjudicated a juvenile offender because of having committed an act which if done by an adult would constitute the commission of capital murder, first degree murder, second degree murder, voluntary manslaughter, assisting suicide, mistreatment of a dependent adult, rape, indecent liberties with a child, aggravated indecent liberties with a child, aggravated criminal sodomy, indecent solicitation of a child, aggravated indecent solicitation of a child, sexual exploitation of a child, sexual battery or aggravated sexual battery, an attempt to commit any of the crimes listed above, a conspiracy to commit any of the crimes listed above, criminal solicitation of any of the crimes listed above, or similar offenses in other states or the federal government (Sec. 39-970(a)(1), as amended by H. 2067, L. 2001).
A person operating an adult care home may employ an applicant who has been convicted of any of the following if five or more years have elapsed since the applicant satisfied the sentence imposed or was discharged from probation, a community correctional services program, parole, postrelease supervision, conditional release or a suspended sentence; or if five or more years have elapsed since the applicant has been finally discharged from the custody of the commissioner of juvenile justice or from probation or has been adjudicated a juvenile offender, whichever time is longer: a felony conviction for a crime which is described in: (A) Art. 34 of Ch. 21 of the Kansas Statutes Annotated, except those crimes listed in Sec. 39-970(a)(1) above; (B) Arts. 35 or 36 of Ch. 21 of the Kansas Statutes Annotated, except those crimes listed in Sec. 39-970(a)(1) above and K.S.A. 21-3605; (C) an attempt to commit any of the crimes listed in this subsection pursuant to K.S.A. 21-3301; (D) a conspiracy to commit any of the crimes listed in this subsection pursuant to K.S.A. 21-3302; (E) criminal solicitation of any of the crimes listed in this subsection pursuant to Sec. 21-3303; or (F) similar statutes of other states or the federal government (Sec. 39-970(a)(2), as amended by H. 2067, L. 2001).
The secretary of health and environment has access to any criminal history record information in the possession of the KBI regarding felony convictions, convictions under K.S.A. 21-3437, 21-3517 and 21-3701, adjudications of a juvenile offender which if committed by an adult would have been a felony conviction, and adjudications of a juvenile offender for an offense described in K.S.A. 21-3437, 21-3517 and 21-3701, concerning persons working in an adult care home. The secretary has access to these records for the purpose of determining whether or not the home meets the requirements of this section (Sec. 39-970(c), as amended by S. 14, L. 2003).
For the purpose of complying with this section, the operator of an adult care home must request from the department of health and environment information regarding only felony convictions, convictions under K.S.A. 21-3437,
For the purpose of complying with this section, the operator of an adult care home shall request from the department of health and environment information regarding only felony convictions, convictions under K.S.A. 21-3437, 21-3517 and 21-3701, adjudications of a juvenile offender which if committed by an adult would have been a felony conviction, and adjudications of a juvenile offender for an offense described in K.S.A. 21-3437, 21-3517 and 21-3701, and that relates to a person who works in the adult care home, or is being considered for employment by the adult care home, for the purpose of determining whether such person is subject to this section. For the purpose of complying with this section, the operator of an adult care home must receive from any employment agency that provides employees to work in the adult care home written certification that such employees are not prohibited from working in the adult care home under this section. For the purpose of complying with this section, information relating to convictions and adjudications by the federal government or to convictions and adjudications in states other than Kansas will not be required until such time as the secretary of health and environment determines the search for such information could reasonably be performed and the information obtained within a two-week period. For the purpose of complying with this section, a person who operates an adult care home may hire an applicant for employment on a conditional basis pending the results from the department of health and environment of a request for information under this subsection. No adult care home, the operator or employees of an adult care home or an employment agency, or the operator or employees of an employment agency, will be liable for civil damages resulting from any decision to employ, to refuse to employ or to discharge from employment any person based on such adult care home's compliance with this section if such home or employment agency acts in good faith to comply with this section (Sec. 39-970(d), as amended by S. 14, L. 2003).
The secretary of health and environment will charge each person requesting information under this section a fee equal to cost, not to exceed $10, for each name about which an information request has been submitted to the department under this section (Sec. 39-970(e), as amended by H. 2067, L. 2001).
The secretary of health and environment must provide each operator requesting information under this section with the criminal history record information concerning felony convictions and convictions under K.S.A. 21-3437, 21-3517 and 21-3701, in writing and within three working days of receipt of such information from the KBI. The criminal history record information must be provided regardless of whether the information discloses that the subject of the request has been convicted of an offense enumerated in Sec. 39-970(a) above (Sec. 39-970(f), as amended by S. 14, L. 2003).
When an offense enumerated in Sec. 39-970(a) exists in the criminal history record information, and when further confirmation regarding criminal history record information is required from the appropriate court of jurisdiction or Kansas department of corrections, the secretary must notify each operator that requests information under this section in writing and within three working days of receipt from the KBI that further confirmation is required. The secretary must provide to the operator requesting information under this section information in writing and within three working days of receipt of such information from the appropriate court of jurisdiction or Kansas department of corrections regarding confirmation regarding the criminal history record information (Sec. 39-970(f), as amended by H. 2067, L. 2001).
Whenever the criminal history record information reveals that the subject of the request has no criminal history on record, the secretary must provide notice to each operator requesting information under this section, in writing and within three working days after receipt of such information from the KBI (Sec. 39-970(f), as amended by H. 2067, L. 2001).
The secretary of health and environment must not provide each operator requesting information under this section with the juvenile criminal history record information that relates to a person subject to a background check as is provided by K.S.A. 38-1618, except for adjudications of a juvenile offender for an offense described in K.S.A. 21-3701. The secretary must notify the operator that requested the information, in writing and within three working days of receipt of such information from the KBI, whether juvenile criminal history record information received pursuant to this section reveals that the operator would or would not be prohibited by this section from employing the subject of the request for information and whether such information contains adjudications of a juvenile offender for an offense described in K.S.A. 21-3701 (Sec. 39-970(f), as amended by S. 14, L. 2003).
An operator who receives criminal history record information under this subsection must keep such information confidential, except that the operator may disclose such information to the person who is the subject of the request for information. A violation of this paragraph is an unclassified misdemeanor punishable by a fine of $100 (Sec. 39-970(f), as amended by H. 2067, L. 2001).
No person who works for an adult care home and who is currently licensed or registered by a Kansas agency to provide professional services in the state and who provides such services as part of the work that such person performs for the home will be subject to this section (Sec. 39-970(g), as amended by H. 2067, L. 2001).
A person who volunteers in an adult care home is not subject to this section because of such volunteer activity (Sec. 39-970(h), as amended by H. 2067, L. 2001).
No person who has been employed by the same adult care home for five consecutive years immediately prior to the effective date of this act will be subject to this section while employed by such home (Sec. 39-970(i), as amended by H. 2067, L. 2001).
The operator of an adult care home will not be required under this section to conduct a background check on an applicant for employment with the adult care home if the applicant has been the subject of a background check under this act within one year prior to the application for employment with the home. The operator of an adult care home where the applicant was the subject of such background check may release a copy of the check to the operator of a home where the applicant is currently applying (Sec. 39-970(j), as amended by H. 2067, L. 2001).
No person who is in the custody of the secretary of corrections and who provides services, under direct supervision in nonpatient areas, on the grounds or other areas designated by the superintendent of the Kansas soldiers' home or the Kansas veterans' home will be subject to this section while providing such services (Sec. 39-970(k), as amended by H. 2067, L. 2001).
For purposes of this section, the KBI must only report felony convictions, convictions under K.S.A. 21-3437, 21-3517 and 21-3701, adjudications of a juvenile offender which if committed by an adult would have been a felony conviction, and adjudications of a juvenile offender for an offense described in K.S.A. 21-3437, 21-3517 and 21-3701, to the secretary of health and environment when a background check is requested (Sec. 39-970(l), as amended by S. 14, L. 2003).
Home health agencies.- No person may knowingly operate a home health agency if, for the agency, there works any person who has been convicted of or has been adjudicated a juvenile offender because of having committed an act that if done by an adult would constitute the commission of capital murder, first degree murder, second degree murder, voluntary manslaughter, assisting suicide, mistreatment of a dependent adult, rape, indecent liberties with a child, aggravated indecent liberties with a child, aggravated criminal sodomy, indecent solicitation of a child, aggravated indecent solicitation of a child, sexual exploitation of a child, sexual battery or aggravated sexual battery, an attempt to commit any of the crimes listed in this subsection, pursuant to K.S.A. 21-3301, a conspiracy to commit any of the crimes listed in this subsection, pursuant to K.S.A. 21-3302, or criminal solicitation of any of the crimes listed in this subsection, pursuant to K.S.A. 21-3303, or similar offenses of other states or the federal government (Sec. 65-5117(a)(1), as amended by H. 2067, L. 2001).
A person operating a home health agency may employ an applicant who has been convicted of any of the following if five or more years have elapsed since the applicant satisfied the sentence imposed or was discharged from probation, a community correctional services program, parole, postrelease supervision, conditional release or a suspended sentence; or if five or more years have elapsed since the applicant has been finally discharged from the custody of the commissioner of juvenile justice or from probation or has been adjudicated a juvenile offender, whichever time is longer: a felony conviction for a crime which is described in: (A) Art. 34 of Ch. 21 of the Kansas Statutes Annotated, except those crimes listed in Sec. 65-5117(a)(1) above; (B) Arts. 35 or 36 of Ch. 21 of the Kansas Statutes Annotated, except those crimes listed in Sec. 65-5117(a)(1) and K.S.A. 21-3605; (C) an attempt to commit any of the crimes listed in this subsection pursuant to K.S.A. 21-3302; (D) a conspiracy to commit any of the crimes listed in this subsection pursuant to K.S.A. 21-3302; (E) criminal solicitation of any of the crimes listed in this subsection pursuant to K.S.A. 21-3303; or (F) similar statutes of other states or the federal government (Sec. 65-5117(a)(2), as amended by H. 2067, L. 2001).
The secretary of health and environment has access to any criminal history record information in the possession of the KBI regarding felony convictions, convictions under K.S.A. 21-3437, 21-3517 and 21-3701, adjudications of a juvenile offender which if committed by an adult would have been a felony conviction, and adjudications of a juvenile offender for an offense described in K.S.A. 21-3437, 21-3517 and 21-3701, concerning persons working for a home health agency. The secretary will have access to these records for the purpose of determining whether or not the agency meets the requirements of this section (Sec. 65-5117(c), as amended by S. 14, L. 2003).
For the purpose of complying with this section, the operator of a home health agency must request from the department of health and environment information regarding only felony convictions, convictions under K.S.A. 21-3437, 21-3517 and 21-3701, adjudications of a juvenile offender which if committed by an adult would have been a felony conviction, and adjudications of a juvenile offender for an offense described in K.S.A. 21-3437, 21-3517 and 21-3701, and that relates to a person who works for the home health agency or is being considered for employment by the agency, for the purpose of determining whether such person is subject to this section. For the purpose of complying with this section, information relating to convictions and adjudications by the federal government or to convictions and adjudications in states other than Kansas will not be required until such time as the secretary of health and environment determines the search for such information could reasonably be performed and the information obtained within a two-week period. For the purpose of complying with this section, the operator of a home health agency must receive from any employment agency that provides employees to work for the home health agency written certification that such employees are not prohibited from working for the home health agency under this section. For the purpose of complying with this section, a person who operates a home health agency may hire an applicant for employment on a conditional basis pending the results from the department of health and environment of a request for information under this subsection. No home health agency, the operator or employees of a home health agency or an employment agency, or the operator or employees of an employment agency, which provides employees to work for the home health agency will be liable for civil damages resulting from any decision to employ, to refuse to employ or to discharge from employment any person based on such home health agency's compliance with this section if such home health agency or employment agency acts in good faith to comply (Sec. 65-5117(d), as amended by S. 14, L. 2003).
The secretary of health and environment will charge each person requesting information under this section a fee equal to cost, not to exceed $10, for each name about which an information request has been submitted under this section (Sec. 65-5117(e), as amended by H. 2067, L. 2001).
The secretary of health and environment must provide each operator requesting information under this section with the criminal history record information concerning felony convictions and convictions under K.S.A. 21-3437, 21-3517 and 21-3701, in writing and within three working days of receipt of such information from the KBI. The criminal history record information must be provided regardless of whether the information discloses that the subject of the request has been convicted of an offense enumerated in Sec. 65-5117(a) above (Sec. 65-5117(f), as amended by S. 14, L. 2003).
When an offense enumerated in Sec. 65-5117(a) exists in the criminal history record information, and when further confirmation regarding criminal history record information is required from the appropriate court of jurisdiction or Kansas department of corrections, the secretary must notify each operator that requests information under this section in writing and within three working days of receipt from the KBI that further confirmation is required. The secretary must provide to the operator requesting information under this section information in writing and within three working days of receipt of such information from the appropriate court of jurisdiction or Kansas department of corrections regarding confirmation regarding the criminal history record information (Sec. 65-5117(f), as amended by H. 2067, L. 2001).
Whenever the criminal history record information reveals that the subject of the request has no criminal history on record, the secretary must provide notice to each operator requesting information under this section, in writing and within three working days after receipt of such information from the KBI (Sec. 65-5117(f), as amended by H. 2067, L. 2001).
The secretary of health and environment must not provide each operator requesting information under this section with the juvenile criminal history record information that relates to a person subject to a background check as is provided by K.S.A. 38-1618, except for adjudications of a juvenile offender for an offense described in K.S.A. 21-3701. The secretary must notify the operator that requested the information, in writing and within three working days of receipt of such information from the KBI, whether juvenile criminal history record information received pursuant to this section reveals that the operator would or would not be prohibited by this section from employing the subject of the request for information and whether such information contains adjudications of a juvenile offender for an offense described in K.S.A. 21-3701 (Sec. 65-5117(f), as amended by S. 14, L. 2003).
An operator who receives criminal history record information under this subsection must keep such information confidential, except that the operator may disclose such information to the person who is the subject of the request for information. A violation of this paragraph is an unclassified misdemeanor punishable by a fine of $100 (Sec. 65-5117(f), as amended by H. 2067, L. 2001).
No person who works for a home health agency and who is currently licensed or registered by a Kansas agency to provide professional services in Kansas and who provides such services as part of the work which such person performs for the home health agency will be subject to this section (Sec. 65-5117(g), as amended by H. 2067, L. 2001).
A person who volunteers to assist a home health agency is not subject to this section because of such volunteer activity (Sec. 65-5117(h), as amended by H. 2067, L. 2001).
No person who has been employed by the same home health agency for five consecutive years immediately prior to the effective date of this act will be subject to this section while employed by such agency (Sec. 65-5117(i), as amended by H. 2067, L. 2001).
The operator of a home health agency will not be required under this section to conduct a background check on an applicant for employment with the agency if the applicant has been the subject of a background check under this act within one year prior to the application for employment with the agency. The operator of a home health agency where the applicant was the subject of such background check may release a copy of such check to the operator of a home health agency where the applicant is currently applying (Sec. 65-5117(j), as amended by H. 2067, L. 2001).
For purposes of this section, the KBI shall only report felony convictions, convictions under K.S.A. 21-3437, 21-3517 and 21-3701, adjudications of a juvenile offender which if committed by an adult would have been a felony conviction, and adjudications of a juvenile offender for an offense described in K.S.A. 21-3437, 21-3517 and 21-3701, to the secretary of health and environment when a background check is requested (Sec. 65-5117(k), as added by S. 14, L. 2003).
State fair workers.- During the period beginning May 1 and extending to October 31 of each year, the state fair board may employ labor and personnel in conjunction with the current operation of the state fair, without compliance with the provisions of any act contained in Art. 29 of Ch. 75 of the Kansas Statutes Annotated, and amendments thereto.The state fair board may conduct a check of the internet site maintained by the KBI concerning registered offenders prior to employing such persons. The board is authorized to use such information to determine such person's fitness for employment. The state fair board or any employees thereof, shall not be liable for civil damages to any person refused employment or discharged from employment by reason of the board complying with this paragraph. This authority to employ shall not be construed as authorizing the board to employ its normal classified service employees on a different basis for all or any part of that six-month period (Sec. 2-205, as amended by Ch. 107 (S. 565), L. 2007, enacted April 21, 2008).
Department of Administration.- The Department of Administration must require as a condition of employment that individuals who have unescorted physical access to the data center, telecommunications facilities and other security sensitive areas as designated by the secretary of administration be fingerprinted, and such fingerprints must be submitted to the KBI and to the FBI for the purposes of verifying the identity of such individuals and obtaining records of criminal arrests and convictions (H. 2629, L. 2001).
Expunged records-exceptions.- When the court has ordered an arrest record, conviction or diversion expunged and the order of expungement has been entered, the petitioner must be treated as not having been arrested, convicted or diverted of the crime, except that the petitioner must disclose that the arrest, conviction, or diversion occurred if asked about previous arrests, convictions or diversions: (a) in any application for employment as a detective with a private detective agency; as security personnel with a private patrol operator; or with an institution of the Department of Social and Rehabilitation Services; (b) in any application for admission, or for an order of reinstatement, to the practice of law in Kansas; (c) to aid in determining the petitioner's qualifications for employment with the Kansas lottery or for work in sensitive areas within the lottery as deemed appropriate by the executive director of the lottery; (d) to aid in determining the petitioner's qualifications for executive director of the Kansas racing commission, for employment with the commission or for work in sensitive areas in parimutuel racing as deemed appropriate by the executive director of the commission; (e) to aid in determining the petitioner's qualifications to be an employee of the state gaming agency; (f) to aid in determining the petitioner's qualifications to be an employee of a tribal gaming commission or to hold a license issued pursuant to a tribal-state gaming compact (Sec. 21-4619, as amended by H. 2098, L. 2001).
Subject to the required disclosures set forth just above, in any application for employment, license or other civil right or privilege, or any appearance as a witness, a person whose arrest records, conviction or diversion of a crime has been expunged under this law may state that such person has never been arrested, convicted or diverted of such crime (Sec. 21-4619, as amended by H. 2098, L. 2001).
Whenever the record of an arrest, conviction or diversion has been expunged, the custodian of the records of arrest, conviction, diversion and incarceration relating to that crime must not disclose the existence of such records, except when requested by (Sec. 21-4619, as amended by H. 2098, L. 2001):
a private detective agency or a private patrol operator, and the request is accompanied by a statement that the request is being made in conjunction with an application for employment with such agency or operator by the person whose record has been expunged;
the Secretary of Social and Rehabilitation Services, or a designee of the secretary, for the purpose of obtaining information relating to employment in an institution of the department of any person whose record has been expunged;
the supreme court, the clerk or disciplinary administrator thereof, the state board for admission of attorneys or the state board for discipline of attorneys, and the request is accompanied by a statement that the request is being made in conjunction with an application for admission, or for an order of reinstatement, to the practice of law in Kansas by the person whose record has been expunged;
the Kansas lottery, and the request is accompanied by a statement that the request is being made to aid in determining qualifications for employment with the Kansas lottery or for work in sensitive areas within the state lottery;
the governor or the Kansas racing commission, or a designee of the commission, and the request is accompanied by a statement that the request is being made to aid in determining qualifications for executive director of the commission, for employment with the commission, for work in sensitive areas in parimutuel racing as deemed appropriate by the executive director of the commission or for licensure, renewal of licensure or continued licensure by the commission;
the state gaming agency, and the request is accompanied by a statement that the request is being made to aid in determining qualifications to be an employee of the state gaming agency or to be an employee of a tribal gaming commission or to hold a license issued pursuant to a tribal-gaming compact;
the department of wildlife and parks and the request is accompanied by a statement that the request is being made to aid in determining qualifications for a permit as a commercial guide or associate guide.
National Crime Prevention and Privacy Compact.- Kansas has ratified the National Crime Prevention and Privacy Compact. The purposes of the compact are, among other things (S. 209, L. 2001):
to provide a legal framework for the establishment of a cooperative federal-state system for the interstate and federal-state exchange of criminal history records for noncriminal justice uses (see DEFINITIONS, above);
to require the FBI to permit use of the national identification index and the national fingerprint file by each party state and to provide, in a timely fashion, federal and state criminal history records to requesting states;
to require party states to provide information and records for the national identification index and the national fingerprint file and to provide criminal history records, in a timely fashion, to criminal history record repositories of other states and the federal government for noncriminal justice purposes.
Job reference liability.- Unless otherwise provided by law, an employer, or an employer's designee, who discloses information about a current or former employee to a prospective employer of the employee will be qualifiedly immune from civil liability (Sec. 44-119a(a)).
Unless otherwise provided by law, an employer who discloses information about a current or former employee to a prospective employer of the employee will be absolutely immune from civil liability. The immunity applies only to disclosure of the following (Sec. 44-119a(b)):
date of employment;
pay level;
job description and duties; and
wage history.
Unless otherwise provide by law, an employer who responds in writing to a written request concerning a current or former employee from a prospective employer of that employee will be absolutely immune from civil liability for disclosure of the following information to which an employee may have access (Sec. 44-119a(c)):
written employee evaluations that were conducted prior to the employee's separation from the employer and to which an employee shall be given a copy upon request; and
whether the employee was voluntarily or involuntarily released from service and the reasons for the separation.
Service letters.- It is unlawful for an employer to refuse to furnish, upon the written request of any employee whose services have been terminated, a service letter setting forth the tenure of employment, occupational classification and wage rate paid the employee (Sec. 44-808).
<p>Service letters.— It is unlawful for an employer to refuse to furnish, upon the written request of any employee whose services have been terminated, a service l</p>