Anti-Terrorism Bill Would Require Extensive Background Checks

By Bill Leonard Nov 16, 2009
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Legislation designed to reduce terrorist threats could have serious and far-reaching human resource ramifications for businesses that produce, handle and use certain types of chemicals.

The House of Representatives on Nov. 6, 2009, approved the Chemical Facility Anti-Terrorism Act of 2009 (H.R. 2868). The bill would alter the background-checking procedures for employers that operate chemical facilities by requiring these businesses to check the criminal history of their workers, identify any terrorist ties they might have and verify the immigration status of their employees. Prospective employees would be covered by the measure as well.

Any worker with access to a chemical facility’s restricted areas or critical assets, and any person who has a copy of an organization’s security vulnerability assessment or site security plan, would be covered. The bill would give broad discretion to the Secretary of Homeland Security to issue regulations and requirements for security background checks based on a chemical facility’s security performance.

Questions have been raised about whether the legislation might be expanded to cover other companies—including electric utilities and those that provide water and sewer services. The bill was introduced in June 2009 by Rep. Bennie Thompson, D-Miss. The speedy House passage caught some business groups by surprise; the measure was little-known until about a week before it was scheduled for debate on the House floor.

While the American Chemistry Council (ACC) supported many of the security provisions in the legislation, the group failed to endorse the bill, saying that the broad authority that would be granted to the Department of Homeland Security in issuing new standards for technology and regulations for security checks would be problematic.

“We were encouraged by changes that ensure proper protections for sensitive information and a civil lawsuit provision that bolsters oversight while still protecting private companies from frivolous lawsuits,” said Cal Dooley, president and CEO of the ACC, in a written statement. “We look forward to working with the Senate to pass legislation that takes an aggressive but smart approach to regulating chemical security.”

While the bill would require employers to conduct more-extensive background checks, the legislation would offer protections to employees and prohibit employers from firing workers after conducting background checks unless an employee has been convicted of a crime or has been found not guilty of a crime by reason of insanity. The job protections would not apply to employees who are on terrorist watchlists or are not eligible to work in the United States.

However, employees who lose their job because of the new security checks would be able to appeal an adverse employment decision. The legislation would require employers to pay these workers full wages and benefits until the appeals process is complete.

The paid leave provision and potentially open-ended appeals process could create unfair administrative burdens for businesses that operate chemical facilities, according to Michael Layman, manager of labor and employment with the Society for Human Resource Management’s Government Affairs Department.

“The legislation would essentially create unlimited paid administrative leave for employees who contest adverse employment decisions,” Layman said. “Appeals processes can take months and sometimes a year or even longer before they are finally settled, and that would be costly to an employer.”

After passing the House, H.R. 2868 was referred to the Senate Committee on Homeland Security and Governmental Affairs. A Senate version of the bill has not been introduced.

Bill Leonardis senior writer for SHRM Online.

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