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.

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