House Bill 1816/Act 168 New Requirements for School Employers – Employment History Review of Prospective Employee (“Pass the Trash”)

House Bill 1816, now known as Act 168, was signed by the Governor on October 22, 2014 and takes effect in 60 days on December 22, 2014.  The law, in final draft, will be located under Section 1-111 of the School Code (Criminal history of employes and prospective employes) relating to criminal background checks.  It will be a new section, Section 1-111.1.

Act 168, in part, is intended to provide an additional level of scrutiny of prospective employees who are hired to work with children in schools, and to continue to ensure that schools are safe and secure.  The Act applies to all public schools, including charter schools; private schools; non-public schools; intermediate units; and area vocational-technical schools throughout the Commonwealth.  It requires that anyone who applies to work directly in or around schools, and who may possibly have direct contact with children, to provide detailed background information from their current employer, and all previous employers if that employment included direct contact with children.  School entities are prohibited from hiring applicants that will have direct contact with children if their prior employment history indicates that they have committed child abuse or sexual misconduct, as defined in Section (n) of the attached Act 168.

Prospective employers must contact current and former employers of all applicants confirming applicant’s statements to determine whether or not  the applicant has ever been investigated, discharged, disciplined or had a license revoked for sexual misconduct.  Current and former employers must disclose the information requested within 20 days from receiving the request from the school or independent contractor.  If a former employer provides any information affirming that there had been an action taken, they must also provide the details of any related records. This must be done within 60 days of the initial response.  An applicant cannot be hired if the former employer does not provide this information.  However, an applicant can be hired on a provisional basis for 90 days if the applicant affirms that he or she has not been subject to actions referenced by the law, but he or she is not allowed to work alone with children during that time. The prospective employer must also check the employment eligibility or certification of the applicant and inquire of PDE as to whether there are any pending criminal charges against the applicant.

In regards to substitutes, an employment history review is only required prior to the initial hiring of a substitute or placement on the school entity’s approved substitute list and shall remain valid as long as the substitute employee continues to be employed by the same school entity or remains on the school entity’s approved substitute list.  However, a substitute seeking to be added to another school entity’s substitute list will have to undergo a new employment history review.  An entity that furnishes substitute staffing services to school entities only has to conduct an employment history review upon the initial hiring of a substitute.  This satisfies the new background check requirements for all school entities using its services.  Additional background checks are not required if the entity provides substitute services to more than one educational entity.

PDE is given jurisdiction to determine willful violations of the law and may, following a hearing, assess a civil penalty not to exceed $10,000.  Schools are barred from contracting with an independent contractor who is found to have willfully violated the provisions of this law.

Before the Act’s effective date, Act 168 requires PDE to develop and make available a standard form to be completed by applicants for use by schools that requires applicants to disclose the name and contact information of former employers and/or to state whether he or she has been the subject of an investigation, has been disciplined, has resigned or has ever had a license or certification revoked due to allegations or findings of abuse or sexual misconduct.  To date the PDE form has not been released.

Act 168 employment history review requirements appear to apply to new hires.  As such, there is time to phase in this new requirement with new applicants.  PDE will clarify if employees other than new hires are included in the new requirements.  By December 22, 2014, school entities, intermediate units, etc. must ensure that these new hiring requirements are implemented and that all outside entities, providing staff with direct contact with children, do the same.  We have attached the most recent draft of the law in bill form with the highlighted sections that note the changes and additions to the law for your reference.  As with other recent bills signed by the Governor there is no final text of the law currently available.  PDE will be providing further information on implementation along with the release of the required forms.

If you should have any questions, please contact Alfred Maiello or Judy Shopp at 412.242.4400.

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