UPDATE: New State Act Increases Background Check Requirements for School Employees and Volunteers

Contributed by John T. Vogel

In the flurry of activity before the end of the legislative session in October, the Pennsylvania Legislature passed and Governor Thomas Corbett signed into law Act 153 of 2014, that amended the state Child Protective Services Law to impose greater background check requirements on school employees, volunteers and contractors with direct contact with children.

Employees:  Foremost, current employees with clearances more than 3 years old as of December 31, 2014 on their child abuse background checks and state and federal criminal history checks must obtain new clearances by December 30, 2015.  Current clearances less than 3 years old will expire at their 3-year anniversary: employees working under those clearances will need to obtain new clearances before that anniversary, even if the anniversary is before the end of 2015.

Question as to “grandfathered” employees:  Public School Code and Child Protective Services Law provisions requiring prospective school employees to obtain clearances have been in operation for years.  But significant numbers of school employees began work prior to the existence of these clearance requirements.  This is an issue because Act 153’s tenor is that  all school employees, contractors and volunteers must obtain background checks, and such checks cannot be more than 3 years old.  Some school organizations have concluded that such “grandfathered” employees should be treated as though they have had clearances for years, and that they have one year, until December 30, 2015, to obtain new clearances.  But the Act can be technically interpreted to read that those school employees and contractors who previously were not required to have clearances must obtain them immediately, by January 1, 2015; other interpretations conclude that these grandfathered employees still are not required to obtain clearances.  School leaders have sought confirmation of the Act’s intent and the Pennsylvania Department of Education”s (“PDE”) formal position on this matter.  But  the conservative course would be to require all school employees to obtain or update clearances, and for those who were never required to have clearances, such clearances should be obtained immediately.

Volunteers:  Also, under Act 153, effective December 31, 2014, new volunteers must have all necessary clearances (federal and state criminal checks and child abuse clearance) in order to be approved for their positions.  Existing volunteers (even volunteers at schools who do not already have clearances) must get them by July 1, 2015.  Similarly, volunteers with clearances that will be more than 3 years old on July 1, 2015 must obtain new clearances before that date.

As set forth in the Child Protective Services Law, a volunteer is an adult serving in an unpaid position in which he or she is individually responsible for the welfare of a child or has direct contact with children.   But if a volunteer has been a Commonwealth resident continually for 10 years, and swears in writing that he or she has never been convicted of a disqualifying crime in Pennsylvania or another state, only the child abuse and state clearances are needed: the federal criminal check in not needed.

Costs:   Act 153 is silent as who must pay for the cost of clearances, including renewed clearances.  However, previous School Code and Child Protective Services Law language was also silent on this topic, and applicants generally paid for clearances.  Given Act 153’s construction, the conclusion is that current employees must bear this cost (absent any language in an applicable collective bargaining agreement).  If employees refuse to obtain clearances, such employees could be compelled from being removed from a position having direct contact with children.

Action:  Any staff or volunteers with current clearances reaching the 3 year mark in early 2015 should begin the renewal process now.  Similarly, current volunteers without clearances, or with clearances that will hit the 3 year mark in summer should get started early in 2015.  Again, for school employees who never had been required to obtain clearances, the conservative course would be for those employees begin obtaining such clearances immediately, absent formal government clarification.  Further, it is recommended that schools start inventorying the date of all existing clearances and determine how renewals will occur so that processing of needed clearances proceeds in an orderly way.    Continue consulting your solicitor to determine if PDE issues clarification on Act 153, particularly as to employees who never had been required to obtain clearances.

UPDATE JANUARY 2015

The State Department of Human Services (“DHS”) recently issued “Fact Sheets” concerning Act 153.  Of note, DHS stated that beginning July 1, 2015, prospective volunteers must submit clearance prior to commencement of service.  Volunteers are required to obtain updated clearances:  (1) within 36 months of the date of the most recent clearance; (2) by July 1, 2016, if a clearance is older than 36 months; or (3) by July 1, 2016 if they were approved as a volunteer before July 1, 2015, and have not received a clearance because they were not required.

As to school employees, a Fact Sheet set forth that clearances were to be submitted prior to commencement of employment or service.  Beginning December 31, 2014, clearances must be obtained every 36 months.  Persons employed prior to December 31, 2014, are required to obtain updated clearances as follows:  (1) within 36 months of the most recent clearance; (2) by December 31, 2015, if the clearance is older than 36 months; or (3) by December 31, 2015 if they were a “grandfathered” employee.  The Fact Sheets confirmed that the only time an employee must pay for clearances is when there is a reasonable belief that the employee/applicant/volunteer was arrested or convicted of an offense that would deny employment or participation, or if the person was named as a perpetrator in an indicated or founded report.

Note the DHS Fact Sheets do not have the force of law but likely would be persuasive to a court.  Also it is doubtful schools would face liability if they chose a more conservative approach on obtaining clearances for new or grandfathered employees or volunteers.