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October 26, 2011 School Law Bullet Number 75
Lifting the Smog: Background Checks Post-Act 24
By and , Esquires
The Act 24 amendments to Section 111 of the Pennsylvania Public School Code went into effect on September 28, 2011, expanding the existing background check requirements for prospective employees and mandating that current employees self-report arrests and convictions of certain crimes. Naturally, this raises a number of questions. The following article addresses some of the understandable, if not inevitable, confusion about the practical application of Act 24.
Act 24: Background Checks in a Nutshell
Prior to Act 24, Section 111(e) of the School Code listed certain offenses that barred employment for five years post-conviction. As of September 28, Act 24 permanently disqualifies an applicant for life who has ever been convicted of a Section 111(e) offense, plus it adds six offenses to the list in Section 111(e).
Additionally, Act 24 requires a 10-year ban on employment for individuals convicted of any first, second or third degree felony offense not listed in Section 111(e). Further, there is a 5-year period of disqualification of individuals convicted of a misdemeanor of the first degree. Finally, and perhaps most controversially, Act 24 imposes a 3-year ban on employment for anyone convicted of a DUI-misdemeanor offense when the prospective employee has previously been convicted of a DUI offense.
As directed by Act 24, the Pennsylvania Department of Education (“PDE”) created a form (Form 6004) for the reporting of arrests and convictions of Section 111(e) offenses. Form 6004, which includes the list of Section 111(e) offenses, is available on PDE’s website and in the September 24, 2011 issue of the Pennsylvania Bulletin. For current employees, Form 6004 must be completed by December 27, 2011, and prospective employees must complete Form 6004 before their time of hire. Effective September 28, 2011, current employees must complete Form 6004 within 72 hours after their arrest or conviction of a Section 111(e) offense.
The Act 24 “Smog”...
Form 6004 arguably contradicts portions of Act 24 because it requires employees to report past arrests. The Pennsylvania State Education Association (“PSEA”) asked PDE to modify Form 6004 and create a form that does not require the reporting of past arrests.
PSEA argued that Section 111(e) only requires disqualification from employment for convictions and, thus, the form should only require the reporting of convictions. The Pennsylvania School Boards Association (“PSBA”) agreed with PSEA to the extent that the reporting of past arrests was seemingly internally inconsistent with the other provisions of Act 24 and could lead to the reporting of stale, useless, and confusing information.
However, PDE has refused to change its form, noting the Act 24 requirement that it create a form requiring the report of arrests or convictions of any Section 111(e) offense. Therefore, at least for now, employees must complete Form 6004 as required under Act 24.
Although neither PSBA or PSEA has made the point, we believe that the requirement to report arrests may violate guidelines issued by the PA Human Relations Commission, and may subject a school entity to a discrimination complaint from an unsuccessful job applicant.
The most common questions we have received regarding the amendments are as follows:
Do we have to fire current employees who report a Section 111(e) conviction or arrest?
Not necessarily, but some cases may warrant employee discipline up to and including termination. The Section 111(e) hiring preclusions were not effective until September 28, 2011. Therefore, for current employees, old arrests probably are not, and old convictions may not necessarily be grounds for termination. However, hereafter, if during the course of employment, an employee is convicted of an offense under Section 111(e), there could very well be cause for suspension or termination under other sections of the School Code.
Note that we do not believe that an arrest alone could ever be grounds for discipline. Since the law on this question is not clear, if an employee reports a Section 111(e) arrest or conviction, you are strongly advised to contact your Solicitor.
Are we permitted to hire employees provisionally until their background checks are complete?
You do not have to, but you may, provided that you proceed with caution. Act 24 did not change the existing option of provisional hiring for a single period of up to 90 days, provided that certain enumerated conditions are met.
Who must comply with the Act 24 requirements?
Anyone who has contact with children must comply with the Act 24 background check requirements. This includes, among others, teachers, substitute teachers, independent contractors, cafeteria workers, and janitors.
Do employees have to report all felonies, misdemeanors, and DUI offenses within 72 hours?
No. Act 24 only requires the reporting of Section 111(e) offenses. If you would like your employees to report other felonies and misdemeanors, including DUI offenses, then, in collaboration with your Solicitor, do so only by school board policy.
What should we do if employees refuse to comply?
It depends. If current employees refuse to complete Form 6004, then the employee must submit to a background check, which may or may not report arrests.
Employees who refuse to complete the form by December 27, 2011 must apply for and fund their own background checks. Should such employees then fail or refuse to provide the background checks, they could be subject to discipline for failing to comply with a statutory mandate.
Also, if you believe that an employee failed to report an arrest or conviction of a Section 111(e) offense within 72 hours, you are responsible for ordering a background check on that employee at district expense. If an employee willfully fails to disclose a conviction or arrest for a Section 111(e) offense, that employee is subject to discipline up to an including termination or denial of employment. In fact, the employee or prospective employee may even be subject to criminal prosecution.
Bottom Line for Schools
Plan now. Distribute Form 6004 to your employees. Call your legal counsel as soon as possible if you have any questions. We will keep you informed.
* This School Law Bullet is meant to be informational and does not constitute legal advice.
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