I 108th CONGRESS 2d Session H. R. 4022 IN THE HOUSE OF REPRESENTATIVES March 24, 2004 Mr. Andrews (for himself and Mr. Saxton) introduced the following bill; which was referred to the Committee on Education and the Workforce, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To strengthen the Nation’s ability to protect its key assets and the life, health, and property of its populace by granting providers of private security services access to the criminal history records available through the National Crime Information Center in connection with their employees and prospective employees, requiring such providers to employ only those employees who pass criminal history records checks, to protect against unauthorized use of such records, and for other purposes.

1.

Short title

This Act may be cited as the &short-title1;.

2.

Findings

Congress finds the following: (1)One of the legacies of the horrific attacks of September 11, 2001, is the greatly enhanced need for security of the homeland. Meeting this need has imposed serious stresses on government agencies at all levels and entities whose primary task is protection of the Nation’s key assets and the life, health, and property of its populace. (2)President Bush stated, in a February 2003 report titled The National Strategy for the Physical Protection of Critical Infrastructures and Key Assets (in this section referred to as the Report), that there is an increased need to assess the Nation’s vulnerabilities and to provide additional security for its key assets. Providing such security will require increased cooperation between Government and the private sector. (3)The Report also recognized that terrorists, in the pursuit of their long-term, strategic objectives, will likely continue to attack critical infrastructures and key assets, the vast majority of which are owned and operated by the private sector. (4)Because of enhanced security needs, the use of private security companies in guarding the Nation’s key assets and the life, health, and property of its populace has increased significantly since September 11, 2001, and will continue to do so. (5)Also because of the enhanced security needs, businesses generally have increased their security efforts and the number of internal employees dedicated to securing their facilities. (6)As reliance on private security companies to guard the Nation’s key assets and to protect the life, health, and property of its populace continues to grow, the hiring and placement decisions of these companies—which employ more than 500,000 private security officers nationwide—have become critical, as they determine which individuals will protect the Nation and have access to its key assets. Similarly, businesses providing their own internal security services have experienced a heightened need to improve their internal security measures and to obtain more information about the individuals who provide their internal security. It has, therefore, become imperative that companies employing or hiring security personnel have access to and be permitted to use a criminal background checking system that is efficient, inclusive, nationwide in scope, dependable, and technologically advanced, so as to minimize the occurrence of dangerous if not disastrous placement and hiring decisions. (7)Companies cannot properly and effectively evaluate their prospective and current employees providing private security services without access to the criminal history records available through the National Crime Information Center (in this section referred to as NCIC). Access to the NCIC for the purpose of reviewing the background of current and prospective employees is currently enjoyed by the banking industry, the nuclear power industry, public housing authorities, and others and should be made available to private security companies and to businesses providing their own security so that they can safely and effectively partner with Federal, State, and local governments in the effort to protect the homeland. (8)Given its critical role in the security of the homeland, the Department of Homeland Security, working in conjunction with the Department of Justice, is best suited to act as the clearinghouse for obtaining and disseminating NCIC criminal history records for the purposes set forth in this section.

3.

Definitions

In this Act, the following definitions shall apply: (1)

Covered employee

The term covered employee means any individual, other than an active law enforcement officer for any governmental unit, who is— (A)employed by, or seeking employment with, a nongovernmental company that provides security guard services; or (B)employed as an internal security employee by, or seeking employment as an internal security employee with, a nongovernmental company that has more than 50 employees, of which 3 or more are internal security employees. (2)

Covered employer

The term covered employer means— (A)any nongovernmental company that— (i)provides security guard services; (ii)for each jurisdiction in which it provides such services, is licensed by such jurisdiction to provide such services, to the extent such jurisdiction permits or requires it to be so licensed; and (iii)provides such services— (I)in interstate or foreign commerce; (II)at any site where there is located any element of the Federal Government; or (III)for any person engaged in interstate or foreign commerce; or (B)any nongovernmental company that— (i)has more than 50 employees, of which 3 or more are internal security employees; (ii)for each jurisdiction in which it provides internal security services with respect to itself, is licensed by such jurisdiction to provide such services, to the extent such jurisdiction permits or requires it to be so licensed; and (iii)is either engaged in interstate or foreign commerce or provides any product or service to any element of the Federal Government. (3)

Internal security employee

The term internal security employee means an employee whose primary responsibility is to provide internal security with respect to the company employing such employee. (4)

Ncic

The term NCIC means the National Crime Information Center of the Department of Justice. (5)

Secretary

The term Secretary means the Secretary of Homeland Security. (6)

State

The term State includes the District of Columbia, the Commonwealth of Puerto Rico, and any other territory or possession of the United States.

4.

Authority to receive NCIC information

(a)

In General

Subject to the other provisions of this section, the Secretary shall, upon receipt of a request by a covered employer with respect to a covered employee, provide for an NCIC criminal history records check with respect to that covered employee and provide the results of that check to that covered employer. (b)

Fingerprints

A request under subsection (a) shall include the fingerprints of the covered employee, which shall be submitted electronically to the Secretary. The Secretary shall transmit those fingerprints to the Attorney General. To assist the Secretary in complying with subsection (a), the Attorney General shall, notwithstanding any other provision of law, provide for— (1)an NCIC criminal history records check to be carried out with respect to that covered employee; and (2)the results of that check to be transmitted to the Secretary. (c)

Fee

The Secretary may, by regulation, establish and collect a reasonable fee for responding to a request under subsection (a).

5.

Use of NCIC information by covered employers

(a)

Prohibition

A covered employer may not employ a covered employee to provide any security service or function unless— (1)the covered employer first obtains the results of an NCIC criminal history records check with respect to that covered employee; and (2)neither the results of that check, nor any other information made available to the covered employer, indicate that the covered employee has any unpardoned conviction under any Federal or State law of any felony or any one or more of the following offenses: (A)Illegally using, carrying, or possessing any firearm or other dangerous weapon. (B)Making or possessing any burglar’s instrument. (C)Buying or receiving stolen property. (D)Unlawful entry of a building. (E)Aiding escape from prison. (F)Unlawfully possessing or distributing any illegal narcotic drug. (G)Picking a pocket or attempting to do so. (H)Recklessly endangering another person. (I)Making any terroristic threat. (J)Assaulting another person. (b)

Limitation

Nothing in this section prevents a covered employer from making any use in its employment decisions of any such check or any other information, except to the extent that section 7 or 8 of this Act prohibit such use. (c)

Delayed applicability for current employees

In the case of a covered employee who is, on the date of the enactment of this Act, employed by a covered employer to provide a security service or function, the prohibition in subsection (a) shall not apply until— (1)the date that is 6 months after the date of the enactment of this Act; or (2)a later date specified by the Secretary, for any case in which the Secretary certifies that the results of the records check could not be obtained within 6 months after the date of the enactment of this Act despite the exercise of reasonable diligence on the part of both the employee and the employer.

6.

Employee rights

(a)

Written Consent

A covered employer may not make a request under section 4(a) with respect to a covered employee, or obtain the fingerprints under section 4(b) of a covered employee, without the written consent of that employee. (b)

Frequency of Requests

A covered employer that makes a request under section 4(a) with respect to a covered employee and thereafter employs that employee for a continuous period may not make another such request with respect to such employee unless— (1)such request is made at least 12 months after the previous request; or (2)good cause exists. (c)

Accuracy and Completeness

The Secretary shall provide each covered employee subject to a request under section 4(a) with the opportunity to provide to the NCIC information concerning the accuracy or completeness of the results of the check.

7.

Records management

A covered employer receiving any information under section 4 shall ensure that such information is— (1)maintained confidentially; (2)not misused or disseminated to any person not involved in the employment decision with respect to the covered employee; and (3)destroyed, upon deciding whether to employ or continue to employ the covered employee or upon the passage of 180 days after the receipt of such information, whichever occurs first.

8.

Use of information by Department of Homeland Security

In carrying out this Act, the Secretary shall establish procedures to ensure that the Department of Homeland Security uses the results of checks carried out under section 4 in a manner that— (1)limits the dissemination of such results outside the Department only to the covered employer; (2)ensures that such results are used only for the purpose of determining the suitability of a covered employee for employment in the private security field; and (3)protects covered employees from misuse of such results.

9.

Regulations

The Secretary shall prescribe regulations to carry out this Act.

10.

Criminal penalties

Any person who knowingly and intentionally uses any information obtained pursuant to this Act for a purpose other than the purpose of determining the suitability of a covered employee for employment in the private security field shall be imprisoned not more than 2 years or fined under title 18, United States Code, or both.