HB3298 98TH GENERAL ASSEMBLY

LRB098 10879 MGM 41384 b

98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB3298

Introduced , by Rep. Darlene J. Senger

SYNOPSIS AS INTRODUCED:

New Act

Creates the Physical Fitness Center Employee Background Check Act. Provides that a physical fitness center employer who makes a conditional offer of employment to an applicant for a position as an employee shall initiate a fingerprint-based criminal history record check on the applicant, if a background check has not been previously conducted. Provides that the Department of State Police shall notify the physical fitness center of any convictions associated with the fingerprints submitted. Provides that the applicant or employee may be required to pay all related application and fingerprinting fees. Provides that the physical fitness center employer shall retain on file, for a period of 5 years, records of criminal records requests for all employees. Provides other requirements for fingerprint-based criminal history records checks and employer's files. Provides that if an employee is suspended from employment based on the results of a criminal background check conducted under this Act, and the results prompting the suspension are subsequently found to be inaccurate, the employee is entitled to recover backpay from his or her physical fitness center employer for the suspension period, provided that the employer is responsible for the inaccuracy. Authorizes the Department of Public Health to exercise the powers and duties prescribed by the Civil Administrative Code of Illinois for administration of licensing acts and shall exercise other powers and duties necessary for effectuating the purpose of the Act. Provides that any person who is found to have violated any provision of the Act is guilty of a petty offense for the first offense and a Class A misdemeanor for the second and any subsequent offense.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning regulation.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Physical Fitness Center Employee Background Check Act.

Section 5. Purpose. The General Assembly finds that it is in the public interest to protect children of the State of Illinois from possible harm by requiring a criminal background check of certain physical fitness center employees who have or may have contact with children.

Section 10. Applicability. This Act applies to all employees of a physical fitness center employer where the employee provides physical fitness services, personal training services, non-physical fitness services, or optional physical fitness services to children.

Section 15. Definitions. In this Act:

"Applicant" means an individual seeking employment with a physical fitness center employer who has received a bona fide conditional offer of employment.

"Child" means a person under 17 years of age.

"Conditional offer of employment" means a bona fide offer of employment by a physical fitness center employer to an applicant that is contingent upon the receipt of fingerprint-based criminal history records check.

"Department" means the Department of Public Health.

"Employee" means any individual hired, employed, or retained by an employer.

"Fingerprint-based criminal history records check" means a livescan fingerprint-based criminal history records check submitted as a fee applicant inquiry in the form and manner prescribed by the Department of State Police.

"Initiate" means to obtain from an applicant or employee his or her social security number, demographics, a disclosure statement, and an authorization for the physical fitness center or its designee to request a fingerprint-based criminal history records check; transmit this information electronically to the physical fitness center; conduct Internet searches on certain web sites, including without limitation the Illinois Sex Offender Registry, the Department of Corrections' Sex Offender Search Engine, the Department of Corrections' Inmate Search Engine, the Department of Corrections Wanted Fugitives Search Engine, the National Sex Offender Public Registry, and the website of the Health and Human Services Office of Inspector General to determine if the applicant is a sex offender or has been a prison inmate, or conduct similar searches as defined by rule; and have the applicant's or employee's fingerprints collected and transmitted electronically to the Department of State Police.

"Livescan vendor" means an entity whose equipment has been certified by the Department of State Police to collect an individual's demographics and inkless fingerprints and, in a manner prescribed by the Department of State Police, electronically transmit the fingerprints and required data to the Department of State Police and a daily file of required data to the physical fitness center.

"Non-physical fitness services" means services or amenities offered by the physical fitness center that are not directly related to physical fitness activities and that are not included in the price of membership to the physical fitness center and includes, but is not limited to, locker fees, spa treatments, massage, tanning, personal grooming services, laundry fees, room rental, parking, food and beverage, vitamins, nutritional supplements, shoes, clothing, and sports or exercise equipment.

"Optional physical fitness services" means additional goods or physical fitness services offered by the physical fitness center that are not part of the membership package or contract, but are available for additional cost, and includes, but is not limited to, personal training services, physical fitness, wellness or exercise classes, nutritional counseling, weight reduction, court time, privileges to use other physical fitness centers, and use of specialized physical fitness equipment or facilities, such as rock climbing walls or aquatic facilities.

"Personal training services" means services performed for a fee by a personal trainer or fitness instructor for individuals or groups relating to developing, monitoring, or supervising physical training, exercise, or fitness programs, education and instruction regarding the use of exercise equipment or techniques, or giving advice relating to any of these subjects or related issues, such as diet.

"Physical fitness facility" means the following:

(1) Any of the following indoor facilities that is (i) owned or operated by a park district, municipality, or other unit of local government, including a home rule unit, or by a public or private elementary or secondary school, college, university, or technical or trade school and (ii) supervised by one or more persons, other than maintenance or security personnel, employed by the unit of local government, school, college, or university for the purpose of directly supervising the physical fitness activities taking place at any of these indoor facilities: a swimming pool; stadium; athletic field; football stadium; soccer field; baseball diamond; track and field facility; tennis court; basketball court; or volleyball court; or similar facility as defined by Department rules.

(2) Any of the following outdoor facilities that is (i) owned by a municipality, township, or other unit of local government, including a home rule unit, or by a public or private elementary or secondary school, college, university, or technical or trade school and (ii) supervised by one or more persons, other than maintenance or security personnel, employed by the unit of local government, school, college, or university for the purpose of directly supervising the physical fitness activities taking place at any of these facilities: a swimming pool; athletic field; football stadium; soccer field; baseball diamond; track and field facility; tennis court; basketball court; or volleyball court; or similar facility as defined by Department rules.

"Physical fitness facility" includes any facility during any activity or program organized by a private or not-for-profit organization and organized and supervised by a person or persons other than the employees of the unit of local government, school, college, or university.

(3) Any other indoor or outdoor establishment, whether public or private, that provides services or facilities focusing on cardiovascular exertion or gaming as defined by Department rules.

"Physical fitness services" includes instruction, training, or assistance in physical culture, bodybuilding, exercising, weight reducing, figure development, judo, karate, self-defense training, or any similar activity. "Physical fitness services" also includes the use of the facilities of a physical fitness center for any of the activities mentioned in this definition or membership in any group formed by a physical fitness center for any of these purposes.

Section 20. Fingerprint-based criminal history records check.

(a) After the effective date of this Act, any applicant or employee who desires to be employed by a physical fitness center must authorize the physical fitness center or its designee to request a fingerprint-based criminal history records check. This authorization shall allow the physical fitness center to request and receive information and assistance from any State or local governmental agency. Each individual shall submit his or her fingerprints to the Department of State Police in an electronic format that complies with the form and manner for requesting and furnishing criminal history record information prescribed by the Department of State Police. The fingerprints submitted under this Section shall be checked against the fingerprint records in the Department of State Police criminal history record databases. The Department of State Police shall charge a fee for conducting the criminal history records check, which shall not exceed the actual cost of the records check. The livescan vendor may act as the designee for physical fitness center employers in the collection of Department of State Police fees and shall deposit those fees into the State Police Services Fund. The Department of State Police shall provide information concerning any criminal convictions against the individual.

(b) A fingerprint-based criminal history records check is not required for physical fitness center employees who have been continuously employed by a physical fitness center employer prior to the effective date of this Act and have met the requirements for criminal history background checks prior to the effective date of this Act. Nothing in this subsection (b) shall be construed to prohibit a physical fitness center employer from initiating a criminal history records check for these employees. If these employees seek a new position with a different physical fitness center employer, then a fingerprint-based criminal history records check shall be conducted.

(c) After the effective date of this Act, a physical fitness center employer who makes a conditional offer of employment to an applicant for a position as an employee shall initiate a fingerprint-based criminal history record check on the applicant, if a background check has not been previously conducted.

(d) When initiating a background check, a physical fitness center employer shall request the applicant's or employee's social security number, demographics, disclosure, and authorization information within 2 working days after the authorization is secured. The applicant or employee must have his or her fingerprints collected electronically and transmitted to the Department of State Police within 10 working days. The physical fitness center employer must transmit all necessary information and fees to the livescan vendor and Department of State Police within 10 working days after receipt of the authorization.

(e) A physical fitness center employer may initiate a fingerprint-based background check for any of its employees, but may not use this process to initiate background checks for residents.

(f) As long as the employee has had a fingerprint-based criminal history record check requested by the physical fitness center employer, no further criminal history record checks shall be necessary. The Department of State Police shall notify the physical fitness center of any additional convictions associated with the fingerprints previously submitted.

Section 25. Application fees. Except as otherwise provided in this Act, the applicant or employee may be required to pay all related application and fingerprinting fees, including, but not limited to, the amounts established by the Department of State Police to process fingerprint-based criminal history records checks.

Section 30. Physical fitness center employer files. The physical fitness center employer shall retain on file, for a period of 5 years, records of criminal records requests for all employees. The physical fitness center employer shall retain a copy of (i) the disclosure and authorization forms, (ii) the livescan request form, and (iii) all notifications resulting from the fingerprint-based criminal history records check and waiver, if appropriate, for the duration of the individual's employment.

Section 35. Immunity from liability. A physical fitness center employer shall not be liable for the failure to hire or to retain an applicant or employee who has a criminal history. However, if an employee is suspended from employment based on the results of a criminal background check conducted under this Act, and the results prompting the suspension are subsequently found to be inaccurate, the employee is entitled to recover backpay from his or her physical fitness center employer for the suspension period, provided that the employer is responsible for the inaccuracy.

Section 40. Violations. Any person who is found to have violated any provision of this Act is guilty of a petty offense for the first offense and a Class A misdemeanor for the second and any subsequent offense.

Section 45. Duties of the Department. The Department shall exercise the powers and duties prescribed by the Civil Administrative Code of Illinois for administration of licensing acts and shall exercise other powers and duties necessary for effectuating the purpose of this Act.