PRIA, Government Policy, Made Personal

Summary

Requires security background checks for railroad employees and for contractor or subcontractor workers. A "security background check" means looking at criminal records, immigration records for non-citizens, and other databases the Secretary chooses. A "covered individual" means a railroad carrier employee or a contractor/subcontractor worker. The Secretary must issue guidance that explains how checks should be done, how far back to look, what crimes disqualify someone, and how a worker can appeal. Any guidance given before August 3, 2007 must be updated within 60 days after that date. Guidance does not count unless it includes a proper appeal (redress) process. If the Secretary makes a rule forcing checks, employers cannot suspend or remove a worker because of the check unless the worker: was convicted, found not guilty by reason of insanity, or is wanted/indicted for a permanent disqualifying crime listed in 49 CFR part 1572; was convicted or found not guilty by reason of insanity of an interim disqualifying crime within 7 years of the check; or was jailed for an interim disqualifying crime and released within 5 years of the check. The Secretary must provide an appeals and waiver process like the one in 46 U.S.C. 70105(c) and can order remedies, including reinstating the worker. Employers may not knowingly misstate the meaning or scope of the rules or guidance; the Secretary must make a regulation banning such misrepresentation within 1 year after August 3, 2007. This law does not override other federal, state, or local laws or change the review process in 46 U.S.C. 70105(c).

Title 6, §1170

Domestic Security, Source: USLM XML via OLRC

(a)Definitions

In this section, the following definitions apply:

(1)Security background check

The term “security background check” means reviewing, for the purpose of identifying individuals who may pose a threat to transportation security or national security, or of terrorism—

(A)relevant criminal history databases;

(B)in the case of an alien (as defined in the Immigration and Nationality Act (8 U.S.C. 1101(a)(3)), the relevant databases to determine the status of the alien under the immigration laws of the United States; and

(C)other relevant information or databases, as determined by the Secretary.

(2)Covered individual

The term “covered individual” means an employee of a railroad carrier or a contractor or subcontractor of a railroad carrier.

(b)Guidance

(1)Any guidance, recommendations, suggested action items, or any other widely disseminated voluntary action items issued by the Secretary to a railroad carrier or a contractor or subcontractor of a railroad carrier relating to performing a security background check of a covered individual shall contain recommendations on the appropriate scope and application of such a security background check, including the time period covered, the types of disqualifying offenses, and a redress process for adversely impacted covered individuals consistent with subsections (c) and (d) of this section.

(2)Within 60 days after August 3, 2007, any guidance, recommendations, suggested action items, or any other widely disseminated voluntary action item issued by the Secretary prior to August 3, 2007, to a railroad carrier or a contractor or subcontractor of a railroad carrier relating to performing a security background check of a covered individual shall be updated in compliance with paragraph (1).

(3)If a railroad carrier or a contractor or subcontractor of a railroad carrier performs a security background check on a covered individual to fulfill guidance issued by the Secretary under paragraph (1) or (2), the Secretary shall not consider such guidance fulfilled unless an adequate redress process as described in subsection (d) is provided to covered individuals.

(c)Requirements

If the Secretary issues a rule, regulation, or directive requiring a railroad carrier or contractor or subcontractor of a railroad carrier to perform a security background check of a covered individual, then the Secretary shall prohibit the railroad carrier or contractor or subcontractor of a railroad carrier from making an adverse employment decision, including removal or suspension of the covered individual, due to such rule, regulation, or directive with respect to a covered individual unless the railroad carrier or contractor or subcontractor of a railroad carrier determines that the covered individual—

(1)has been convicted of, has been found not guilty by reason of insanity, or is under want, warrant, or indictment for a permanent disqualifying criminal offense listed in part 1572 of title 49, Code of Federal Regulations;

(2)was convicted of or found not guilty by reason of insanity of an interim disqualifying criminal offense listed in part 1572 of title 49, Code of Federal Regulations, within 7 years of the date that the railroad carrier or contractor or subcontractor of a railroad carrier performs the security background check; or

(3)was incarcerated for an interim disqualifying criminal offense listed in part 1572 of title 49, Code of Federal Regulations, and released from incarceration within 5 years of the date that the railroad carrier or contractor or subcontractor of a railroad carrier performs the security background check.

(d)Redress process

(1)provide an adequate redress process for a covered individual subjected to an adverse employment decision, including removal or suspension of the employee, due to such rule, regulation, or directive that is consistent with the appeals and waiver process established for applicants for commercial motor vehicle hazardous materials endorsements and transportation employees at ports, as required by section 70105(c) of title 46; and

(2)have the authority to order an appropriate remedy, including reinstatement of the covered individual, should the Secretary determine that a railroad carrier or contractor or subcontractor of a railroad carrier wrongfully made an adverse employment decision regarding a covered individual pursuant to such rule, regulation, or directive.

(e)False statements

A railroad carrier or a contractor or subcontractor of a railroad carrier may not knowingly misrepresent to an employee or other relevant person, including an arbiter involved in a labor arbitration, the scope, application, or meaning of any rules, regulations, directives, or guidance issued by the Secretary related to security background check requirements for covered individuals when conducting a security background check. Not later than 1 year after August 3, 2007, the Secretary shall issue a regulation that prohibits a railroad carrier or a contractor or subcontractor of a railroad carrier from knowingly misrepresenting to an employee or other relevant person, including an arbiter involved in a labor arbitration, the scope, application, or meaning of any rules, regulations, directives, or guidance issued by the Secretary related to security background check requirements for covered individuals when conducting a security background check.

(f)Rights and responsibilities

Nothing in this section shall be construed to abridge a railroad carrier’s or a contractor or subcontractor of a railroad carrier’s rights or responsibilities to make adverse employment decisions permitted by other Federal, State, or local laws. Nothing in the section shall be construed to abridge rights and responsibilities of covered individuals, a railroad carrier, or a contractor or subcontractor of a railroad carrier, under any other Federal, State, or local laws or under any collective bargaining agreement.

(g)No preemption of Federal or State law

Nothing in this section shall be construed to preempt a Federal, State, or local law that requires criminal history background checks, immigration status checks, or other background checks, of covered individuals.

(h)Statutory construction

Nothing in this section shall be construed to affect the process for review established under section 70105(c) of title 46, including regulations issued pursuant to such section.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Immigration and Nationality Act, referred to in subsec. (a)(1)(B), is act June 27, 1952, ch. 477, 66 Stat. 163, which is classified principally to chapter 12 (§ 1101 et seq.) of Title 8, Aliens and Nationality. The term “alien” is defined in section 101(a)(3) of the Act which is classified to section 1101(a)(3) of Title 8. For complete classification of this Act to the Code, see

Short Title

note set out under section 1101 of Title 8 and Tables.

§1170 Security Background Checks of Covered Individuals