§ 21-15-113. Waiver of exclusion or discharge requirement for persons in designated financial or information technology positions

(a)

1. (1) The provisions of §§ 21-15-111 and 21-15-112 prohibiting the hiring of a person or requiring the discharge of a person in a designated financial or information technology position may be waived by the director of a state agency upon the request of:

   1. (A) A supervisor or other managerial employee in the state agency;

   2. (B) An affected applicant; or

   3. (C) An incumbent employee in the designated financial or information technology position who is subject to discharge.

2. (2) A request for a waiver must be made within five (5) days of the receipt of the criminal background check.

3. (3) If the crime is a misdemeanor and more than five (5) years have lapsed since the conviction, the state agency is not required to discharge an incumbent employee if a request for a waiver is timely made and if the waiver is ultimately granted.

4. (4) If the waiver is not granted and the waiver request was for an incumbent employee who was not immediately discharged, the state agency shall immediately discharge the incumbent employee.

5. (5) If the waiver is not granted and the waiver request was for an applicant, the state agency is prohibited from hiring the applicant in a designated financial or information technology position.

6. (6) If an incumbent employee was immediately discharged but was subsequently granted a waiver, the incumbent employee shall be immediately reinstated but is not entitled to retroactive relief, including back pay.

(b)

1. (1) A waiver may be granted upon a preponderance of the evidence that the applicant or employee is rehabilitated such that the public interest is not threatened by the applicant’s or employee’s employment.

2. (2) Evidence of rehabilitation may include:

   1. (A) The age at which the crime or act was committed;

   2. (B) The circumstances surrounding the crime or act;

   3. (C) The length of time since the crime or act;

   4. (D) Subsequent work history;

   5. (E) Employment references;

   6. (F) Character references; and

   7. (G) Other evidence demonstrating the rehabilitation of the applicant or employee.