Criminal Background Checks Under §1-111 Act 24 of 2011
Education Practice Alert
Governor Corbett signed Act 24 of 2011 in June, including the amendments to §1 111. Those amendments, which went into effect on September 28, did a few, separate things. They expanded the specific list of barred offenses in subsection (e), changed that list from a delayed hiring eligibility to a permanent bar, created a new delay period for hiring employees with any non-listed felonies and first degree misdemeanors, and required both current and prospective employees to self-report criminal information.
We have been getting a number of questions about the amendment, so this Alert will attempt to address those issues.
First, it is important to remember that these amendments restrict those people that a school is allowed to hire, but they have almost no direct impact on the employment of those already employed. Some school administrators have mistakenly stated that these amendments require schools to fire a current employee where a prior conviction for a barred offense comes to light. While this may be true in some limited cases1 , it is generally not so, and neither this statute nor the companion provision in §5-527 requires termination of employment.
When it passed the original §1-111 in 1985, the Pennsylvania legislature demonstrated that it was uncomfortable having people convicted of certain listed offenses around school children. That list is found in sub-section (e) of §1-1112 . Previously, the legislature allowed individuals convicted of these offenses to get a job in a school once the conviction was at least 5-years-old, presumably believing that such a person was reformed and no longer a danger. From this amendment, it is clear the legislature has changed its mind on that issue.
Under the amendment, a school cannot hire a new employee – or allow a contractor to bring an employee on-site – who has ever been convicted of any offense on that list. Moreover, a prospective employee who has been convicted of any non-listed felony must wait 10 years after the end of his or her supervision (probation or parole) before being eligible for employment. Similarly, for unlisted misdemeanors of the first degree, the waiting period is five years (except for DUIs, for which it is only three years).
None of the above has any bearing on a current employee.3
For a current employee, the only requirement is to notify the school of any arrests or convictions for any of the specifically listed offenses in sub-section (e). This does not include any of the unlisted offenses, whether felonies or misdemeanors (such as DUI). To establish a baseline, the current employees are to submit a list of all past arrests and convictions for listed offenses by December 27, 2011. After that, they are only required to make supplementary reports in the event of a new arrest or conviction for one of those listed offenses.
An employee can get in trouble for submitting a report that omits an arrest or conviction for a listed offense, both through school issued discipline and the criminal court. However, where he or she fails to submit the form entirely, the school’s only recourse is to require the employee get a new criminal background check as though a new hire.
There was a delay in the distribution of the PDE designed reporting form by many schools. One of the state-wide teachers’ unions (PSEA) raised a concern with PDE over the form (the PDE-6004). However, the union has now conceded that PDE had authority to create the form in the way it did. We have some reason to believe that the AFT may file a legal challenge, bu, as of the issuance of this Alert, we have not received such an action. The prevailing view is that districts should now circulate – or at least notify employees where they may obtain – the reporting form. The deadline to complete the form remains December 27, 2011.
Which brings us back to questioning what can be done with an employee who reports a prior arrest or conviction for an offense listed under §1-111(e) that did not prevent the employee from being initially hired. The amendment does not authorize a school to fire that individual, and while a new conviction while employed will trigger termination under §5-527(b), there is no parallel provision for convictions prior to employment. There is also no parallel provision for those employees hired before background checks were required.
If a school wishes to terminate an existing employee for a prior criminal offense that only came to light through the self-reporting process, it will need a basis other than this provision.4 One example might be if the employee lied about his or her prior criminal history during the application process, but there are certainly others that could also apply. Therefore, where a current employee’s self-reporting form admits to a prior arrest or conviction for a barred offense, the administrator should contact the school’s attorney to review the options available.
If you have any questions about the above Alert, you may contact A. Kyle Berman at 610.397.7980 or email@example.com, or any member of Fox Rothschild’s Education Law Group.
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