03.09.2015
Article

Act 168: Background Checks Added to the Public School Code

Act 168 of 2014 took effect in December amending the Public School Code of 1949.  The Act adds a section to the Code entitled “Employment History Review” which imposes requirements pertaining to employment involving direct contact with children.  The amendments are designed to require and enable schools and independent contractors to conduct background checks in the interest of protecting children.  This Act affects school entities and independent contractors that are hiring applicants as well as current or previous employers of persons who apply for positions with other entities.

The Act defines “direct contact with children” as “the possibility of care, supervision, guidance or control of children or routine interaction with children.”  The term “school entity” includes public, private, and charter schools as well as intermediate units or area vocational-technical schools operating within the Commonwealth of Pennsylvania.

The Act applies to school entities or independent contractors which offer employment to applicants who would have direct contact with children.  The act requires applicants to provide:
1)    A list, including contact information, of current and former employers where the applicant has or had direct contact with children,
2)    Written authorization consenting to and authorizing disclosure by such employers, and
3)    A written statement of whether the applicant has been the subject of an abuse or sexual misconduct investigation (unless the allegations were found to be false), has been disciplined, discharged, or otherwise separated from any employment while allegations were pending or under investigation, or has ever had a license or certificate suspended or revoked while allegations were pending or under investigation. 

The school or independent contractor must then conduct a review of the applicant’s employment history and request the following information from those employers:
1)    Dates of employment,
2)    A statement as to whether the applicant was the subject of any abuse or sexual misconduct investigation, was disciplined or otherwise separated from employment pursuant to such allegations, or has ever had a license or certificate suspended or revoked due to such allegations.

The school or independent contractor must also determine whether the applicant holds valid and active certification for the position and determine whether the Department of Education has received notification of pending criminal charges.  Any applicant who provides false information or willfully fails to disclose the required information is subject to discipline as provided in the Act.  Any employer from whom information is requested pursuant to the Act has sixty days to provide the requested information.  Failure to do so may result in civil penalties and/or violations of the Educator Misconduct Act. 

Schools and independent contractors may not hire applicants for a position involving direct contact with children who do not provide the required information.  There is a ninety day provisional period during which applicants may work pending review of the information.  To qualify for the provisional period, the applicant must have provided all required information and the school administrator must have no knowledge of information that would disqualify the applicant.  The applicant must swear or affirm that he or she is not disqualified from employment, must not work alone with children, and is required to work in the immediate vicinity of a permanent employee. 

The ability of the school entity or independent contractor to report suspected abuse or other required information may not be limited by a collective bargaining agreement.   Employment history for substitute employees must be reviewed prior to the initial hiring and remains valid so long as the employee continues to be employed by the same entity.  Information pertaining to employees of independent contractors must be reviewed either at the time of initial hiring or prior to the assignment to perform work involving direct contact with children.  Schools may object to any independent contractor employee who has ever been the subject of any abuse or sexual misconduct investigation or proceeding, unless the allegations were found to be false. 

School entities may not contract with independent contractors who have been found to have willfully violated the Act.  The Department of Education has jurisdiction to determine willful violations of the section and may assess civil penalties up to $10,000. 

The Act does not limit the ability of a prospective employer to conduct further investigations, nor does it relieve a school entity, administrator, or independent contractor from legal responsibility to report suspected incidents of abuse or professional misconduct.

The Act also adds language to the Public School Code concerning teaching related to manufacturing and vocational fields. 

CGA Law Firm’s School Law Department will be more than happy to discuss any questions you may have and/or assist with understanding your responsibilities and role in protecting the children of our Commonwealth.  Please contact CGA with any questions regarding this matter or other school law needs.

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