United States: How To Unravel Background Checks And What Steps To Take Next

As the deadline approaches for employees of Pennsylvania public school entities to obtain or update background clearances, there are almost certain to be criminal history reports that raise questions about the ability of some employees to continue working in a public school setting. School officials need to know what steps to take once they have such information in hand. [1]

Here are some of the questions that are likely to arise in the coming weeks:

  1. Whether an employee can continue to work if they fail to submit mandatory clearances by the December 31, 2015, deadline?
  2. What options does a public school entity have where an employee fails to submit clearances by the deadline, such as placing the employee on a paid or unpaid leave of absence, allowing the employee to utilize accrued but unused leave, suspending the employee (with or without pay) or possible termination?
  3. Whether an employee's criminal history impacts their eligibility for continuing employment with a public school entity?
  4. What options does a public school entity have where an employee submits a criminal history report containing information that may impact their eligibility for continuing employment?
  5. Whether an employee can be disciplined or terminated for failing to report criminal history information identified on the 2012 "Arrest/Conviction Report and Certification Form" (PDE 6004) where the information is no longer an automatic bar to continued employment under the School Code?
  6. If a public school entity decides to terminate an employee based on the employee's criminal history, what steps are required to ensure due process, compliance with the School Code and employee rights arising from any applicable collective bargaining agreement?
  7. Whether a public school entity can provisionally continue an employee's direct contact with students if all mandatory background clearances are not received by the December 31, 2015, deadline?
  8. Whether a public school entity is required to report the arrest or conviction of an educator to the Professional Standards and Practices Commission?
  9. Whether an employee can be disciplined or terminated for failing to disclose criminal history information on an employment application where the information is not an automatic bar to continued employment under the School Code?
  10. How will disputes be resolved involving employees who fail to file timely background clearances or who are involved in the situations set forth in the previous questions in this document?

Q. Can an employee continue to work if they fail to submit mandatory clearances by the December 31, 2015, deadline?

A. The law is very specific that updated clearances must be on file with the public school entity before January 1, 2016. If an employee fails to provide any of the mandatory clearances, the employee may not have direct contact with students. As a result, public school entities are required to take immediate action with respect to this group of employees. This applies across the board to all employees who have direct contact with students.

Q. What options does a public school entity have where an employee fails to submit clearances by the deadline, such as placing the employee on a paid or unpaid leave of absence, allowing the employee to utilize accrued but unused leave, suspending the employee (with or without pay) or possible termination?

A. In all likelihood, each situation is going to present a unique set of facts and circumstances surrounding why an employee failed to submit clearances by the deadline. Some examples include: waiting until the last minute to apply for the necessary clearances, being out on a medical or sabbatical leave of absence, encountering problems with submitting fingerprints through COGENT or simply not understanding the requirements. We recommend conducting a Loudermill hearing (including field level union representation) to assess the individual employee's situation. You may wish to consider the logistics of scheduling these hearings in advance and discuss the procedure with your legal counsel and union leadership.

Following the Loudermill, the public school entity should work with legal counsel to determine whether to: 1) place the employee on a paid or unpaid leave of absence while clearances are pending; 2) allow the employee to utilize accrued but unused leave that is permitted under the applicable contract, employment policy or handbook provision; 3) suspend the employee (with or without pay) while clearances are pending; or 4) take steps to terminate the employee if the employee ultimately refuses to submit clearances.

(Note: Additional information about Loudermill hearings will be discussed below. Importantly, a public school entity may not suspend an employee without pay or unilaterally place an employee on an unpaid leave without conducting some form of Loudermill proceeding. If an employee is being evasive about scheduling the Loudermill, please contact legal counsel to discuss your options. Finally, an employee may voluntarily consent to being placed on an unpaid leave of absence.)

Q. How do I determine whether an employee's criminal history impacts their eligibility for continuing employment with a public school entity?

A. We recommend conducting a Loudermill hearing (including field level union representation) to assess the individual employee's situation. An employee may be placed on a paid leave, suspended with pay or permitted to use accrued but unused leave that is permitted under the applicable contract, employment policy or handbook provision while you review the situation and hold the Loudermill.

The public school entity should review the specific charges involved and the grading of the offenses to determine the impact the arrest and/or conviction has on the employee under Section 111 of the School Code. We recommend reviewing the charges with your legal counsel because the nature of the offense and whether it is graded as a summary offense, misdemeanor or felony will have a significant impact on whether the employee remains eligible for continuing employment with a public school entity.

Other important information to gather at the Loudermill hearing may include: 1) when and where the arrest and/or conviction took place; 2) the employee's understanding of how the offense was disposed of, e.g., were the charges dismissed? Did the employee participate in ARD? Did the employee plead guilty? 3) What is the employee's explanation for the arrest and/or conviction? and 4) Assuming an obligation to report, what is the employee's explanation for failing to report the arrest or conviction to the public school entity?

Following the Loudermill, the public school entity should work with legal counsel to determine whether the employee was obligated to report the arrest or conviction pursuant to Section 111 of the School Code and, if the employee was convicted of the charges, whether the conviction bars the employee from working for a public school entity.

Q. What options does a public school entity have where an employee submits a criminal history report containing information which may impact their eligibility for continuing employment?

A. Following the investigation described above, the public school entity may: 1) determine that the criminal history does not impact the employee's eligibility for continued employment and find that no employment action is required; 2) determine that the employee willfully failed to report an arrest or conviction that does not bar continued employment and issue progressive discipline (such as a letter of reprimand, suspending the employee (with or without pay) or moving for termination) for failing to report the offense; or 3) determine that the employee willfully failed to report an offense which bars employment with a public school entity and initiate steps to terminate.

The public school entity should review this determination with legal counsel in order to adequately analyze the constitutional impact of barring an individual from current or prospective employment based on the employment restrictions contained in Section 111 of the School Code. PDE has published guidance to assist school administrators in applying the employment bans to current and prospective employees. Importantly, PDE directs public school entities to perform this analysis on a case-by-case basis with the advice of legal counsel.

In deciding whether it would be unconstitutional to bar an individual from current or prospective employment, school administrators should consider multiple factors including: 1) the nature of the offense as it relates to student safety; 2) the relationship of the offense to the employee's fitness to perform the job; 3) how much time has passed since the offense occurred; 4) the employee's current position and job performance; 5) whether the offense was an isolated incident; 6) presence or absence of subsequent criminal history; 7) whether the offense occurred on school property; and 8) any evidence of rehabilitation provided by the employee since the conviction.

PDE also directs school administrators to document the process used, along with their findings and analysis of whether it is constitutional to apply the employment ban to the current or prospective employee. If a public school entity determines that it would be unconstitutional to ban a particular individual from employment, the decision must be supported by a written opinion from legal counsel.

(Note: PDE has issued detailed guidance on the considerations involved in applying Section 111 in a question and answer format entitled "PDE Guidance on Recent Commonwealth Court Rulings Concerning Act 24 of 2011 (Section 111(e) of the School Code)" that can be found on the PDE website.)

Q. Can an employee be disciplined or terminated for failing to report criminal history information identified on the 2012 "Arrest/Conviction Report and Certification Form" (PDE 6004) where the information is no longer an automatic bar to continued employment under the School Code?

A. Yes. Section 111 of the School Code states that a public school employee can be disciplined up to and including termination for willfully failing to report criminal history. We recommend conducting a Loudermill hearing (including field level union representation) to assess the individual employee's situation.

The public school entity will need to review the specific charge involved and the grading of the offense to determine the impact (if any) the arrest and/or conviction has on the employee under Section 111 of the School Code.

Following the Loudermill, the public school entity should work with legal counsel to determine whether the employee willfully failed to report the arrest or conviction to the public school entity on the PDE 6004 form and, where appropriate, issue progressive discipline (such as a letter of reprimand, suspending the employee (with or without pay) or moving for termination) for failing to report the information on the PDE 6004.

Q. If a public school entity decides to terminate an employee based on the employee's criminal history, what steps are required to ensure due process, compliance with the School Code and employee rights arising from any applicable collective bargaining agreement?

A. A public school entity must follow all mandatory requirements of due process established by Pennsylvania law when terminating school employees for information contained in a criminal history report, for failing to disclose criminal history information on the PDE 6004 form or for failing to disclose criminal history on an employment application.

When terminating teachers and other certified employees, public school entities are required to follow the procedures for terminating professional employees found in Section 1122 of the School Code. All other school employees are covered by the termination procedures found in Section 514.

The public school entity should work with legal counsel to determine the appropriate process for terminating the employee and to ensure compliance with the School Code and employee rights arising from any applicable collective bargaining agreement.

(Note: Section 514 does not apply to Intermediate Units and Vocational-Technical Schools.)

Q. Can a public school entity provisionally continue an employee's direct contact with students if all mandatory background clearances are not received by the December 31, 2015, deadline?

A. Under Section 111 of the School Code, provisional employment is only authorized for "applicants." We believe the term "applicant" here will be interpreted by a court to mean only a prospective employee and not a current employee with lapsed background clearances. However, while strict construction of the statute does not really allow for the use of "provisional employment" under these circumstances, PDE has indicated (informally) that it will likely permit it on a case-by-case basis.

With that said, the requirements for provisional employment for a single period, not to exceed 90 days, include: (1) all applications for clearances are submitted; (2) no knowledge by the administration of information that would disqualify the applicant from employment; (3) a sworn statement that the applicant is not disqualified from employment; and (4) the applicant is not permitted to work alone with students and a cleared person must be in the immediate vicinity.

Please be advised that we view PDE's guidance to be at odds with the statutory language in Section 111 and if a public school entity elects to follow PDE's guidance, it will be subject to challenge in the courts. Further, it may be difficult to justify why a public school entity is permitting an employee without updated clearances on file to have direct contact with students.

Q. In the context of reviewing an employee's criminal history, when is the public school entity required to report the arrest or conviction of an educator to the Professional Standards and Practices Commission (PSPC)?

A. Public school entities are required to report any certified employee who is arrested or convicted of any crime that is graded a misdemeanor or felony to the PSPC within 15 days of discovering the offense. Arrests must be reported regardless of disposition and reports must be made regardless of the date of the offense. The public school entity should work with legal counsel to review the specific charge involved and the grading of the offense to determine whether it is obligated to report the arrest or conviction to the PSPC.

(Note: Basic Education Circular 24 P.S. § 2070.9a entitled "Educator Misconduct – School Entity Mandatory Report Procedures and Form" provides detailed guidance on the reporting procedures that should be used by the public school entity including the School Entity Mandatory Report Form.)

Q. Can an employee be disciplined or terminated for failing to disclose criminal history information on an employment application where the information is not an automatic bar to continued employment under the School Code?

A. Yes. We recommend conducting a Loudermill hearing (including field level union representation) to assess the individual employee's situation.

The public school entity should review the specific charge involved and the grading of the offense to determine the impact (if any) the arrest and/or conviction has on the employee under Section 111 of the School Code.

Following the Loudermill, the public school entity should assess the situation with legal counsel and, if necessary, institute progressive discipline (such as a letter of reprimand, suspending the employee (with or without pay) or moving for termination) for failing to disclose the criminal history information on the employment application.

(Note: The public school entity may also be required report the criminal history of a certified employee to the PSPC consistent with the information described above.)

Q. How will disputes be resolved involving employees who fail to file timely background clearances or who are involved in the situations set forth in the previous questions in this document?

A. In our view, PDE will not be the ultimate decision-maker for these matters. We have received good word that the Pennsylvania State Education Association intends to challenge all adverse employment actions that result from disciplinary actions taken against their bargaining unit members through the arbitration process. This means that labor arbitrators will ultimately decide the propriety of the public school entity's action. Arbitrators almost universally apply progressive discipline and often invoke implied equitable principles when reviewing employer discipline. This is why we are recommending a fact-specific and case-by-case approach.

Footnote

[1] The following background checks are required under the School Code: PA State Police Criminal History, Department of Human Resources Child Abuse History; and Federal Criminal History (FBI) Report.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions