[Congressional Record Volume 148, Number 47 (Wednesday, April 24, 2002)]
[Senate]
[Pages S3306-S3308]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEVIN (for himself, Mr. Thompson, Mr. Lieberman, and Mr. 
        McConnell):
  S. 2238. A bill to permit reviews of criminal records of applicants 
for private security officer employment; to the Committee on the 
Judiciary.
  Mr. LEVIN. Madam President, I am introducing along with Senators 
Thompson, Lieberman and McConnell the Private Security Officer 
Employment Standards Act of 2002, a bill that would provide private 
security firms an opportunity to gain access to national criminal 
history information to determine whether or not employees or applicants 
for employment pose a threat to the facilities and persons they are 
supposed to protect.
  Large numbers of critical non-governmental facilities, from power 
plants to schools to hospitals, are protected by private security firms 
and their civilian security officers. Keeping these facilities secure 
from terrorism or other forms of violent attack is critical to our 
national security. Yet currently most private security employers cannot 
obtain timely national criminal background check information on the 
very people they need to hire to protect these key facilities. This 
legislation seeks to correct that. This bill would authorize private 
security firms to request Federal background check information on 
current and prospective employees through the appropriate State 
agencies, thereby permitting firms to obtain relevant criminal history 
information they might not otherwise receive.

[[Page S3307]]

  The Criminal Justice Information Services Division of the FBI 
maintains complete criminal history records for both Federal crimes and 
State crimes on individuals with criminal records in the United States. 
Searches are most efficiently conducted by using fingerprints to ensure 
efficiency and accuracy. We have already passed legislation 
specifically permitting other industries, the banking, nursing home, 
and child care industries, to name a few, to test their prospective 
employees against the FBI's comprehensive records. Many of the reasons 
that justified passage of those laws, especially the desire to ensure 
that those who provide certain important services have a background 
commensurate with their responsibilities, argues for passage of this 
bill as well.
  This legislation will enhance our Nation's security. As an adjunct to 
our Nation's law enforcement officers, private security guards are 
responsible for the protection of numerous critical components of our 
Nation's infrastructure, including power generation facilities, 
hazardous materials manufacturing facilities, water supply and delivery 
facilities, oil and gas refineries, and food processing plants. The 
approximately 13,000 private security companies in the United States 
employ about 1.5 million persons nationwide. Given the critical nature 
of the facilities private security officers are hired to protect, it is 
imperative that we provide access to information that might disclose 
who is unsuitable for protecting these resources.
  We understand that in about 40 States, private security companies are 
required to receive a State license in order to conduct business. 
Relying upon a Federal bill passed in the early 1970's, 37 States and 
the District of Columbia have passed legislation authorizing State 
agencies to request both State and Federal record searches. Despite 
this authorization, security firms report that searches of both State 
and Federal databases is the exception rather than the rule. That is 
because only one State, California, makes such reviews mandatory. In 
the other jurisdictions with authorizing statutes, reviews of the 
Federal database are conducted at the discretion of the States. I am 
told that in approximately half of the 36 States with authorizing 
statutes, typically only State databases are searched. An additional 13 
States have not even authorized any form of Federal criminal background 
check. What that means is that in approximately 31 States, a private 
security employer typically has no access to any Federal criminal 
database information. In these 31 States, an employment applicant in 1 
State could have a serious criminal conviction in another State and 
still be permitted to perform sensitive security work. The State 
conducting the search would have no idea such a conviction in another 
State existed without access to the Federal database.

  Further, even in those few States that actually conduct Federal 
records searches, I am told that searches of the backgrounds of new 
employees in the Federal database often take 90 to 120 days. While 
checks are pending, security guards are often provided a temporary 
license. This 90 to 120 day period is more than enough time for a guard 
with a temporary license to perpetrate dangerous acts. In light of our 
urgent need to strengthen our homeland security, this lack of access to 
criminal checks and the time it takes to complete such checks is 
unacceptable. We need to act in order to make it easier for States and 
employers to gain timely access to this information.
  The bill strikes the appropriate balance between the interests of all 
parties involved.
  First, the bill permits private security employers to request that 
the FBI criminal history database be searched for prospective or 
existing employees. Requests must be made by the employers through 
their States' identification bureau or similar State agency designated 
by the Attorney General. Employers will not be granted direct access to 
the FBI records. Instead, States will serve as intermediaries between 
employers and the FBI to: one, ensure that employment suitability 
determinations are made pursuant to applicable State law; two, prevent 
disclosure of the raw FBI criminal history information to the employers 
and the public; and three, minimize the FBI's administrative burden of 
having to respond to background check requests from countless different 
sources. The program will not cost the Federal Government anything. The 
legislation allows the FBI, and States if they so choose, to charge 
reasonable fees to security firms to recover their costs of carrying 
out this act.
  Second, the bill protects employee and prospective employee's 
privacy. Before an FBI background check can be conducted, the employee 
or applicant for employment must grant an employer written consent to 
request the FBI database search. In addition, the criminal history 
reports received by the States will not be disseminated to employers. 
Instead, in States that have laws regulating private security guard 
employment, designated State agencies will simply be required to use 
the information provided by the FBI in applying their State standards. 
For those States that have no standards, the States will be instructed 
to inform requesting employers whether or not employees or applicants 
have been convicted of either: one, a felony; two, a violent 
misdemeanor within the past 10 years; or, three, crime of dishonesty 
within the past 10 years. Thus, only the fact that a conviction exists 
or not will be provided by States to employers, and the privacy of the 
records themselves will be maintained. All information provided to 
employers pursuant to this act must be provided to the employees or 
prospective employees. Furthermore, the bill establishes strong 
criminal penalties for those who might falsely certify they are 
authorized security firms or otherwise use information obtained 
pursuant to this act beyond the act's intended purposes.
  Third, the bill protects States' rights. The bill does not impose an 
unfunded mandate on the States. It reserves the right of States to 
charge reasonable fees to employers for their costs in administering 
this act. Moreover, if a State wishes to opt out of this statutory 
regime, it may do so at any time.
  I believe that the time is right for us to enact this legislation. It 
strikes the right balance between the need for employers to gain access 
to this critical information and the privacy rights of current and 
prospective security guards. We have worked with the FBI to ease the 
administrative process, and it will cost the Federal Government 
nothing. There is no undue burden being placed on our States.
  Passage of this act will plug a hole in our homeland security. I urge 
my colleagues to support the passage of this legislation.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2238

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Private Security Officer 
     Employment Standards Act of 2002''.

     SEC. 2. FINDINGS.

       Congress finds that--
       (1) employment of private security officers in the United 
     States is growing rapidly;
       (2) private security officers function as an adjunct to, 
     but not a replacement for, public law enforcement by helping 
     to reduce and prevent crime;
       (3) such private security officers protect individuals, 
     property, and proprietary information, and provide protection 
     to such diverse operations as banks, hospitals, research and 
     development centers, manufacturing facilities, defense and 
     aerospace contractors, high technology businesses, nuclear 
     power plants, chemical companies, oil and gas refineries, 
     airports, communication facilities and operations, office 
     complexes, schools, residential properties, apartment 
     complexes, gated communities, and others;
       (4) sworn law enforcement officers provide significant 
     services to the citizens of the United States in its public 
     areas, and are supplemented by private security officers;
       (5) the threat of additional terrorist attacks requires 
     cooperation between public and private sectors and demands 
     professional security officers for the protection of people, 
     facilities, and institutions;
       (6) the trend in the Nation toward growth in such security 
     services has accelerated rapidly;
       (7) such growth makes available more public sector law 
     enforcement officers to combat serious and violent crimes;
       (8) the American public deserves the employment of 
     qualified, well-trained private security personnel as an 
     adjunct to sworn law enforcement officers;

[[Page S3308]]

       (9) private security officers and applicants for private 
     security officer positions should be thoroughly screened and 
     trained; and
       (10) standards are essential for the selection, training, 
     and supervision of qualified security personnel providing 
     security services.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Employee.--The term ``employee'' includes both a 
     current employee and an applicant for employment.
       (2) Authorized employer.--The term ``authorized employer'' 
     means any person that--
       (A) provides, as an independent contractor, for 
     consideration, the services of private security officers; and
       (B) is authorized by the Attorney General to obtain 
     information provided by the State or other authorized entity 
     pursuant to this section.
       (3) Private security officer.-- The term ``private security 
     officer''--
       (A) means an individual who performs security services, 
     full- or part-time, for consideration as an independent 
     contractor or an employee, whether armed or unarmed and in 
     uniform or plain clothes, whose primary duty is to perform 
     security services; but
       (B) does not include--
       (i) sworn police officers who have law enforcement powers 
     in the State;
       (ii) employees whose duties are primarily internal audit or 
     credit functions;
       (iii) an individual on active duty in the military service;
       (iv) employees of electronic security system companies 
     acting as technicians or monitors; or
       (v) employees whose duties primarily involve the secure 
     movement of prisoners.
       (4) Security services.--The term ``security services'' 
     means the performance of security services as such services 
     are defined by regulations promulgated by the Attorney 
     General.

     SEC. 4. BACKGROUND CHECKS.

       (a) In General.--
       (1) Submission of fingerprints.--An authorized employer may 
     submit fingerprints or other means of positive identification 
     of an employee of such employer for purposes of a background 
     check pursuant to this Act.
       (2) Employee rights.--
       (A) Permission.--An authorized employer shall obtain 
     written consent from an employee to submit the request for a 
     background check of the employee under this Act.
       (B) Access.--An employee shall be provided confidential 
     access to information relating to the employee provided 
     pursuant to this Act to the authorized employer.
       (3) Providing records.--Upon receipt of a background check 
     request from an authorized employer, submitted through the 
     State identification bureau or other entity authorized by the 
     Attorney General, the Attorney General shall--
       (A) search the appropriate records of the Criminal Justice 
     Information Services Division of the Federal Bureau of 
     Investigation; and
       (B) promptly provide any identification and criminal 
     history records resulting from the background checks to the 
     submitting State identification bureau or other entity 
     authorized by the Attorney General.
       (4) Frequency of requests.--An employer may request a 
     background check for an employee only once every 12 months of 
     continuous employment by that employee unless the employer 
     has good cause to submit additional requests.
       (b) Regulations.--Not later than 180 days after the date of 
     enactment of this Act, the Attorney General shall issue such 
     final or interim final regulations as may be necessary to 
     carry out this Act, including--
       (1) measures relating to the security, confidentiality, 
     accuracy, use, submission, dissemination, and destruction of 
     information and audits, and recordkeeping;
       (2) standards for qualification as an authorized employer; 
     and
       (3) the imposition of reasonable fees necessary for 
     conducting the background checks.
       (c) Criminal Penalty.--Whoever falsely certifies that he 
     meets the applicable standards for an authorized employer or 
     who knowingly and intentionally uses any information obtained 
     pursuant to this Act other than for the purpose of 
     determining the suitability of an individual for employment 
     as a private security officer shall be fined not more than 
     $50,000 or imprisoned for not more than 2 years, or both.
       (d) User Fees.--
       (1) In general.--The Director of the Federal Bureau of 
     Investigation may--
       (A) collect fees pursuant to regulations promulgated under 
     subsection (b) to process background checks provided for by 
     this Act;
       (B) notwithstanding the provisions of section 3302 of title 
     31, United States Code, retain and use such fees for salaries 
     and other expenses incurred in providing such processing; and
       (C) establish such fees at a level to include an additional 
     amount to remain available until expended to defray expenses 
     for the automation of fingerprint identification and criminal 
     justice information services and associated costs.
       (2) State costs.--Nothing in this Act shall be construed as 
     restricting the right of a State to assess a reasonable fee 
     on an authorized employer for the costs to the State of 
     administering this Act.
       (e) State Opt Out.--A State may decline to participate in 
     the background check system authorized by this Act by 
     enacting a law providing that the State is declining to 
     participate pursuant to this subsection.
       (f) State Standards and Information Provided to Employer.--
       (1) Absence of state standard.--If a State participates in 
     the background check system authorized by this Act and has no 
     State standard for qualification to be a private security 
     officer, the State shall notify an authorized employer 
     whether or not an employee has been convicted of a felony, an 
     offense involving dishonesty or false statement if the 
     conviction occurred during the previous 10 years, or an 
     offense involving the use or attempted use of physical force 
     against the person of another if the conviction occurred 
     during the previous 10 years.
       (2) State standard.--If a State participates in the 
     background check system authorized by this Act and has State 
     standards for qualification to be a private security officer, 
     the State shall use the information received pursuant to this 
     Act in applying the State standard and shall notify the 
     employer of the results.
                                 ______