Pennsylvania Association of Independent Schools New Criminal Background Checks Requirements August 24, 2011 Patricia A. Hennessy, Esquire, Latsha Davis

Pennsylvania Association of Pennsylvania Association of Independent SchoolsIndependent Schools

New Criminal Background Checks New Criminal Background Checks RequirementsRequirements

August 24, 2011August 24, 2011

Patricia A. Hennessy, Esquire, Latsha Davis & McKenna, P.C.610-524-8454 [email protected]

IT WOULD NOT BE A LEGAL IT WOULD NOT BE A LEGAL PRESENTATION WITHOUT A PRESENTATION WITHOUT A DISCLAIMER….DISCLAIMER….

DISCLAIMER:DISCLAIMER:

I encourage questions and open dialogue, but I encourage questions and open dialogue, but any statements or representations made any statements or representations made during this session do not constitute legal during this session do not constitute legal

advice.advice.

Given FERPA and other legal considerations, Given FERPA and other legal considerations, please refrain from directly referencing please refrain from directly referencing

confidential student situations or employee confidential student situations or employee situations at your individual school during situations at your individual school during

the session. the session.

PUBLIC PUBLIC SCHOOL CODE?SCHOOL CODE?

Pennsylvania School Code of Pennsylvania School Code of 1949 1949 et seqet seq does contain some does contain some provisions which apply to all provisions which apply to all schools – including private/non-schools – including private/non-public/religious schoolspublic/religious schools

Criminal Background Checks and Criminal Background Checks and Child Abuse Clearances are one Child Abuse Clearances are one of those provisions.of those provisions.

CRIMINAL BACKGROUND CRIMINAL BACKGROUND CHECKSCHECKS

What Hasn’t Changed?What Hasn’t Changed? Still have to get state and federal Still have to get state and federal

criminal background checks for criminal background checks for prospective employeesprospective employees

CRIMINAL BACKGROUND CRIMINAL BACKGROUND CHECKSCHECKS Checks must take place for all individuals Checks must take place for all individuals

who have direct contact with children: who have direct contact with children: teachers, substitutes, janitors, cafeteria teachers, substitutes, janitors, cafeteria workers, independent contractors and workers, independent contractors and student teacher candidates.student teacher candidates.

Direct contact with children - Possibility of Direct contact with children - Possibility of care, supervision, guidance or control of care, supervision, guidance or control of children by a paid employee or contractor children by a paid employee or contractor of, or an employee of a person under of, or an employee of a person under contract with, a school entity, and routine contract with, a school entity, and routine interaction with children by a paid interaction with children by a paid employee of a school entity or a person employee of a school entity or a person under contract with a school entityunder contract with a school entity

CRIMINAL BACKGROUND CRIMINAL BACKGROUND CHECKSCHECKS Volunteers:Volunteers:

State law only requires background State law only requires background check reports for check reports for volunteers in Charter volunteers in Charter SchoolsSchools (23 PS 17-1724A). State law (23 PS 17-1724A). State law does not require background checks for does not require background checks for volunteers in other public and private volunteers in other public and private schools. However, individual school schools. However, individual school entities are permitted to adopt policies entities are permitted to adopt policies that go beyond the scope of the law (Act that go beyond the scope of the law (Act 114 - 24 PS 1-111). Many school 114 - 24 PS 1-111). Many school entities enforce policies that require entities enforce policies that require background check reports for their background check reports for their volunteers. volunteers.

CRIMINAL BACKGROUND CRIMINAL BACKGROUND CHECKSCHECKS The 90 day provisional:The 90 day provisional:

You can employ an individual in your You can employ an individual in your school for 90 days while awaiting receipt school for 90 days while awaiting receipt of the official reports, IF:of the official reports, IF:

the employee has provided you with the employee has provided you with completed formscompleted forms

Administrator has no knowledge or Administrator has no knowledge or information that the employee has a information that the employee has a disqualifying eventdisqualifying event

Employee swears or affirms in writing that Employee swears or affirms in writing that he/she is not subject to a disqualifying eventhe/she is not subject to a disqualifying event

the administrator requires that the applicant the administrator requires that the applicant not be permitted to work alone with children not be permitted to work alone with children and that the applicant work in the immediate and that the applicant work in the immediate vicinity of a permanent employee. vicinity of a permanent employee.


The criminal background check The criminal background check when presented must not be when presented must not be more than a year old.more than a year old.


Administrators still have Administrators still have personal responsibility if he/she personal responsibility if he/she willfully fail to comply with the willfully fail to comply with the requirement.requirement. Up to $2,500 fineUp to $2,500 fine

New Criminal Background Checks New Criminal Background Checks RequirementsRequirements

On June 28, 2011, the On June 28, 2011, the Pennsylvania Assembly Pennsylvania Assembly amended Section 111 of the amended Section 111 of the Public School Code regarding Public School Code regarding Background Checks of Background Checks of Prospective Employees and Prospective Employees and Conviction of Employees of Conviction of Employees of Certain Offenses. Certain Offenses.

Pennsylvania Criminal Background Pennsylvania Criminal Background Checks – What You Already Know (Or Checks – What You Already Know (Or Should Know)Should Know)

As you are aware, Section 111 As you are aware, Section 111 precluded the employment of precluded the employment of individuals who have been individuals who have been convicted of certain enumerated convicted of certain enumerated felony offenses that occurred felony offenses that occurred with a five year period of the with a five year period of the application for employment. application for employment.

Pennsylvania Criminal Background Pennsylvania Criminal Background Checks – What You Already Know (Or Checks – What You Already Know (Or Should Know) (Cont.)Should Know) (Cont.)

However, the Legislature has However, the Legislature has modified the statute to include modified the statute to include certain certain lifetimelifetime bans or bans or increased the applicable time increased the applicable time periods as well as adding periods as well as adding additional offenses (felonies and additional offenses (felonies and misdemeanors). misdemeanors).

Pennsylvania Criminal Background Pennsylvania Criminal Background Checks – What You Already Know (Or Checks – What You Already Know (Or Should Know)Should Know)

Enumerated Offenses Already Enumerated Offenses Already Part of the Law: Part of the Law:

Pennsylvania Criminal Background Pennsylvania Criminal Background Checks – What You Already Know (Or Checks – What You Already Know (Or Should Know) (Cont.)Should Know) (Cont.) criminal homicidecriminal homicide aggravated assaultaggravated assault stalkingstalking kidnappingkidnapping unlawful restraintunlawful restraint raperape statutory sexual assaultstatutory sexual assault involuntary deviate sexual intercourseinvoluntary deviate sexual intercourse sexual assaultsexual assault institutional sexual assaultinstitutional sexual assault

Pennsylvania Criminal Background Pennsylvania Criminal Background Checks – What You Already Know (Or Checks – What You Already Know (Or Should Know) (Cont.)Should Know) (Cont.) aggravated indecent assaultaggravated indecent assault indecent assaultindecent assault indecent exposureindecent exposure incestincest concealing death of childconcealing death of child endangering welfare of childrenendangering welfare of children dealing in infant childrendealing in infant children prostitution and related offensesprostitution and related offenses obscene and other sexual materials and obscene and other sexual materials and

performancesperformances corruption of minorscorruption of minors sexual abuse of childrensexual abuse of children an offense designated as a felony under The an offense designated as a felony under The

Controlled Substance, Drug, Device and Cosmetic Controlled Substance, Drug, Device and Cosmetic Act.Act.

What Are The New Felonies?What Are The New Felonies?

Luring a child into a motor vehicle or Luring a child into a motor vehicle or structurestructure

Sexual intercourse with an animalSexual intercourse with an animal Unlawful contact with a minorUnlawful contact with a minor Solicitation of minors to traffic drugsSolicitation of minors to traffic drugs Sexual exploitation of childrenSexual exploitation of children An offense similar in nature to those An offense similar in nature to those

crimes listed above for which a person crimes listed above for which a person was convicted under the laws or former was convicted under the laws or former laws of the United States or one of its laws of the United States or one of its territories or possessions, another state, territories or possessions, another state, the District of Columbia, the the District of Columbia, the Commonwealth of Puerto Rico or a Commonwealth of Puerto Rico or a foreign nation, or under a former law of foreign nation, or under a former law of this Commonwealth.this Commonwealth.

New Criminal Background Checks New Criminal Background Checks Requirements (cont.)Requirements (cont.)

Under the previous law, the time Under the previous law, the time frame was 5 years prior to the frame was 5 years prior to the time of prospective employment.time of prospective employment.

New Law:New Law:

LIFELONG BAN FROM LIFELONG BAN FROM EMPLOYMENT AT A SCHOOLEMPLOYMENT AT A SCHOOL


In addition to the lifelong ban as In addition to the lifelong ban as enumerated above, the new criminal enumerated above, the new criminal background check provision adds a ten background check provision adds a ten year ban of employment if the criminal year ban of employment if the criminal history record indicates that the history record indicates that the prospective employee has been convicted prospective employee has been convicted of a felony offense of the first, second or of a felony offense of the first, second or third degree (other than the above-cited third degree (other than the above-cited enumerated offenses). enumerated offenses).

An employee is only eligible for An employee is only eligible for employment ONLY if a period of ten years employment ONLY if a period of ten years has elapsed from the date of expiration of has elapsed from the date of expiration of the sentence for the offense.the sentence for the offense.


If the conviction is for a If the conviction is for a misdemeanor of the first degree, misdemeanor of the first degree, the person shall be eligible for the person shall be eligible for prospective employment only if prospective employment only if a period of five (5) years has a period of five (5) years has elapsed from the date of elapsed from the date of expiration of the sentence for expiration of the sentence for the offense.the offense.


Finally, if the criminal background Finally, if the criminal background check reveals that the person has check reveals that the person has been convicted of more than one been convicted of more than one offense graded as a misdemeanor of offense graded as a misdemeanor of the first degree of driving under the the first degree of driving under the influence of alcohol or a controlled influence of alcohol or a controlled substance, the employee is substance, the employee is precluded from employment in a precluded from employment in a school for three years from the school for three years from the expiration of the sentence from the expiration of the sentence from the most recent offense. most recent offense.


The previous law precluded schools from The previous law precluded schools from requiring an existing employee to obtain requiring an existing employee to obtain another criminal background as a condition another criminal background as a condition of continued employmentof continued employment That provision has been stricken.That provision has been stricken.

Transfer Language has changedTransfer Language has changed: : Any Any person who has once obtained the person who has once obtained the information required under this section may information required under this section may transfer to transfer to or provide servicesor provide services to another to another school in the same district, school in the same district, diocese or diocese or religious judicatory,religious judicatory, or or established and established and supervised by the same organizationsupervised by the same organization and and shall not be required to obtain additional shall not be required to obtain additional reports before making such transfer.reports before making such transfer.


The term “transfers” indicates that the The term “transfers” indicates that the employee would be in the same position or employee would be in the same position or type of position. If the individual is type of position. If the individual is changing positions in the same manner as changing positions in the same manner as an individual being hired, the Act requires an individual being hired, the Act requires background clearances that are no more background clearances that are no more than one year old at the time of hire. than one year old at the time of hire. Therefore, in such situations, the individual Therefore, in such situations, the individual would be required to obtain new would be required to obtain new background clearances if their background background clearances if their background check reports are more than one year old.check reports are more than one year old.


Language exempting those Language exempting those individuals who are under 21 individuals who are under 21 years of age, employed for less years of age, employed for less than 90 days AND are part of a than 90 days AND are part of a job development/job training job development/job training program has been stricken.program has been stricken.

AS IF THAT WERE NOT AS IF THAT WERE NOT SCARY ENOUGH….SCARY ENOUGH…. The Pennsylvania Department of The Pennsylvania Department of

Education has been charged by the Education has been charged by the Legislature under the new Act to Legislature under the new Act to develop a standardized form to be develop a standardized form to be used by current and prospective used by current and prospective employees of public and private employees of public and private schools, intermediate units and area schools, intermediate units and area vocational-technical schools for the vocational-technical schools for the written reporting by current and written reporting by current and prospective employees of any prospective employees of any arrestarrest or conviction for enumerated or conviction for enumerated offenses outlined above. offenses outlined above.

AS IF THAT WERE NOT AS IF THAT WERE NOT SCARY ENOUGH (Cont.)SCARY ENOUGH (Cont.) The form shall provide a space in which a The form shall provide a space in which a

current or prospective employee who has current or prospective employee who has not been convicted of or not been convicted of or arrestedarrested for any for any such offense will respond "no conviction" such offense will respond "no conviction" and "no arrest." and "no arrest."

If an employee fails to accurately report If an employee fails to accurately report arrest or conviction information for the arrest or conviction information for the relevant offenses, the employee shall be relevant offenses, the employee shall be subject to criminal prosecution (as well as subject to criminal prosecution (as well as subject to the school’s internal discipline subject to the school’s internal discipline procedures). procedures).

AS IF THAT WERE NOT AS IF THAT WERE NOT SCARY ENOUGH (Cont.)SCARY ENOUGH (Cont.) Within ninety (90) days of the Within ninety (90) days of the

effective date of the legislation (or effective date of the legislation (or September 28, 2011), all September 28, 2011), all currentcurrent employees of a public or private employees of a public or private school, intermediate unit or area school, intermediate unit or area vocational-technical school shall vocational-technical school shall complete the PDE form, indicating complete the PDE form, indicating whether or not they have been whether or not they have been convicted of any of the relevant convicted of any of the relevant enumerated offenses. enumerated offenses.

AS IF THAT WERE NOT AS IF THAT WERE NOT SCARY ENOUGH…. (cont.)SCARY ENOUGH…. (cont.) If an employee refuses to If an employee refuses to

complete the PDE form, the complete the PDE form, the school’s administrator or “other school’s administrator or “other person responsible for person responsible for employment decisions in a employment decisions in a school or other institution” shall school or other institution” shall immediately require the immediately require the employee to submit to the employee to submit to the administrator a current report of administrator a current report of criminal history record.criminal history record.

AS IF THAT WERE NOT AS IF THAT WERE NOT SCARY ENOUGH….(Cont.)SCARY ENOUGH….(Cont.) If an If an arrestarrest or conviction for any or conviction for any

of the relevant enumerated of the relevant enumerated offenses occurs after the initial offenses occurs after the initial reporting phase, the employee reporting phase, the employee shall provide the administrator shall provide the administrator or designee with written notice or designee with written notice utilizing the PDE form provided utilizing the PDE form provided not later than not later than seventy-two (72) seventy-two (72) hourshours after an arrest or after an arrest or conviction.conviction.

AS IF THAT WERE NOT AS IF THAT WERE NOT SCARY ENOUGH….(Cont.)SCARY ENOUGH….(Cont.) One of the more troubling aspects of the legislation One of the more troubling aspects of the legislation

is the requirement that if an administrator or “other is the requirement that if an administrator or “other person responsible for employment decisions in a person responsible for employment decisions in a school or other institution” has a school or other institution” has a reasonable beliefreasonable belief that an employee was arrested or has a conviction that an employee was arrested or has a conviction for an enumerated offense required to be reported, for an enumerated offense required to be reported, and the employee or prospective employee has not and the employee or prospective employee has not notified the administrator as required, the notified the administrator as required, the administrator or “other person responsible for administrator or “other person responsible for employment decisions in a school or other employment decisions in a school or other institution” shall immediately require the employee institution” shall immediately require the employee to submit to the administrator a current report of to submit to the administrator a current report of criminal history record at the school’s expense. criminal history record at the school’s expense.

AS IF THAT WERE NOT AS IF THAT WERE NOT SCARY ENOUGH….(Cont.)SCARY ENOUGH….(Cont.) If the employee willfully fails to disclose a If the employee willfully fails to disclose a

conviction or an arrest for the enumerated conviction or an arrest for the enumerated offenses, the employee shall be subject to offenses, the employee shall be subject to discipline up to and including termination or discipline up to and including termination or denial of employment and may be subject denial of employment and may be subject to criminal prosecution. to criminal prosecution.

If the employee willfully fails to disclose a If the employee willfully fails to disclose a conviction of any other offense required to conviction of any other offense required to be reported by this section may be subject be reported by this section may be subject to discipline and may be subject to criminal to discipline and may be subject to criminal prosecution.prosecution.

WHAT THE FORM AND WHAT THE FORM AND REPORTING REQUIREMENTS REPORTING REQUIREMENTS DO NOT MEAN…DO NOT MEAN… Surveying your existing staff for Surveying your existing staff for

felonies and misdemeanors and felonies and misdemeanors and driving under the influence driving under the influence offenses….offenses….

But, reasonable belief?But, reasonable belief?

CONCERNS…CONCERNS…

There are, of course, a number There are, of course, a number of issues for the foreseeable of issues for the foreseeable future: future:


What is the impact on and the What is the impact on and the liability created for the school liability created for the school should you determine that you should you determine that you have any employee on staff have any employee on staff engaging in the enumerated engaging in the enumerated offenses? offenses?


The PDE form is not yet completed or The PDE form is not yet completed or even due until the school year is even due until the school year is underway; underway;

PDE is required to publish the form PDE is required to publish the form on its publicly accessible internet on its publicly accessible internet website and in the Pennsylvania website and in the Pennsylvania Bulletin.Bulletin.

This reporting requirement deadline This reporting requirement deadline will be the end of December 2011.will be the end of December 2011.


HOWEVER:HOWEVER: Note that the written reports that Note that the written reports that

employees must turn in within 72 hours employees must turn in within 72 hours after an arrest or conviction under after an arrest or conviction under Section J(2) is for any covered arrest Section J(2) is for any covered arrest that occurs after the effective date of the that occurs after the effective date of the subsection (e.g. within 90 days of the subsection (e.g. within 90 days of the date of the Act) – September 28, 2011date of the Act) – September 28, 2011

Form is not available yet.Form is not available yet.


We anticipate that there will be We anticipate that there will be challenges regarding the challenges regarding the disclosure of arrest information disclosure of arrest information versus conviction information.versus conviction information.

We also anticipate challenges to We also anticipate challenges to the ‘lifelong ban.” the ‘lifelong ban.”


The law does not define “other The law does not define “other person responsible for person responsible for employment decisions in a employment decisions in a school or other institution.” school or other institution.” The wording is very broad and could end The wording is very broad and could end up encompassing people not normally up encompassing people not normally associated with just hiring and firing associated with just hiring and firing (supervisors, team leaders, ‘lunch lady,’ (supervisors, team leaders, ‘lunch lady,’ etc.). etc.).


What is not discussed in the What is not discussed in the legislation is if there is a penalty legislation is if there is a penalty to the school if it does not to the school if it does not request the background check request the background check or submit the PDE forms in the or submit the PDE forms in the 90 day window. 90 day window.


Additionally, there is no mandate on what Additionally, there is no mandate on what schools are required to do with those schools are required to do with those current employees who are now current employees who are now discovered to have a 'record' which is discovered to have a 'record' which is disclosed in the reporting timeline, except: disclosed in the reporting timeline, except:

““NOTHING IN THIS SECTION SHALL BE NOTHING IN THIS SECTION SHALL BE CONSTRUED TO INTERFERE WITH THE ABILITY CONSTRUED TO INTERFERE WITH THE ABILITY

OF A PUBLIC OR PRIVATE SCHOOL, OF A PUBLIC OR PRIVATE SCHOOL, INTERMEDIATE UNIT OR AREA VOCATIONAL-INTERMEDIATE UNIT OR AREA VOCATIONAL-

TECHNICAL SCHOOL TO MAKE EMPLOYMENT, TECHNICAL SCHOOL TO MAKE EMPLOYMENT, DISCIPLINE OR TERMINATION DECISIONS.”DISCIPLINE OR TERMINATION DECISIONS.”


What is a reasonable belief? What is a reasonable belief?

NEXT STEPS FOR NEXT STEPS FOR SCHOOLSSCHOOLS The obvious: continue your current The obvious: continue your current

practice of criminal background practice of criminal background checks for prospective employees checks for prospective employees (and volunteers!).(and volunteers!).

The not-so-obvious:The not-so-obvious: Amend any and all school policies.Amend any and all school policies. Designate the person(s) who is/are Designate the person(s) who is/are

responsible for employment decisions.responsible for employment decisions. Training. Training. Keep a watchful eye for the PDE Form.Keep a watchful eye for the PDE Form.

QUESTIONS?QUESTIONS?

Patricia A. Hennessy, EsquirePatricia A. Hennessy, Esquire610-524-8454610-524-8454

[email protected]@ldylaw.com

Documents

Pennsylvania Association of Independent Schools New Criminal Background Checks Requirements August 24, 2011 Patricia A. Hennessy, Esquire, Latsha Davis