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§ 1-111.1. Employment history review

Purdon's Pennsylvania Statutes and Consolidated StatutesTitle 24 P.S. EducationEffective: December 30, 2019

Purdon's Pennsylvania Statutes and Consolidated Statutes
Title 24 P.S. Education
Chapter 1. Public School Code of 1949 (Refs & Annos)
Article I. Preliminary Provisions (Refs & Annos)
Effective: December 30, 2019
24 P.S. § 1-111.1
§ 1-111.1. Employment history review
Currentness
(a) This section shall apply to all positions for employment at school entities and independent contractors of school entities involving direct contact with children.
(b) In addition to fulfilling the requirements of section 1111 and 23 Pa.C.S. § 6344.2 (relating to information relating to other persons having contact with children), before a school entity or independent contractor may offer employment to an applicant who would be employed by or in a school entity in a position involving direct contact with children, the school entity or independent contractor shall:
(1) Require the applicant to provide:
(i) A list, including name, address, telephone number and other relevant contact information of the applicant's:
(A) Current employer.
(B) All former employers that were school entities.
(C) All former employers where the applicant was employed in positions that involved direct contact with children.
(ii) A written authorization that consents to and authorizes disclosure by the applicant's current and former employers under subparagraph (i) of the information requested under paragraph (2) and the release of related records and that releases those employers from liability that may arise from such disclosure or release of records pursuant to subsection (d)(5).
(iii) A written statement of whether the applicant:
(A) has been the subject of an abuse or sexual misconduct investigation by any employer, State licensing agency, law enforcement agency or child protective services agency, unless the investigation resulted in a finding that the allegations were false;
(B) has ever been disciplined, discharged, nonrenewed, asked to resign from employment, resigned from or otherwise separated from any employment while allegations of abuse or sexual misconduct as described in clause (A) were pending or under investigation, or due to an adjudication or findings of abuse or sexual misconduct as described in clause (A); or
(C) has ever had a license, professional license or certificate suspended, surrendered or revoked while allegations of abuse or sexual misconduct as described in clause (A) were pending or under investigation, or due to an adjudication or findings of abuse or sexual misconduct as described in clause (A).
(2) Conduct a review of the employment history of the applicant by contacting those employers listed by the applicant under the provisions of paragraph (1)(i) and requesting the following information:
(i) The dates of employment of the applicant.
(ii) A statement as to whether the applicant:
(A) was the subject of any abuse or sexual misconduct investigation by any employer, State licensing agency, law enforcement agency or child protective services agency, unless such investigation resulted in a finding that the allegations were false;
(B) was disciplined, discharged, nonrenewed, asked to resign from employment, resigned from or otherwise separated from any employment while allegations of abuse or sexual misconduct as described in clause (A) were pending or under investigation, or due to an adjudication or findings of abuse or sexual misconduct described in clause (A); or
(C) has ever had a license, professional license or certificate suspended, surrendered or revoked while allegations of abuse or sexual misconduct as described in clause (A) were pending or under investigation, or due to an adjudication or findings of abuse or sexual misconduct as described in clause (A).
(3) Check the eligibility for employment or certification status of any applicant for a position involving direct contact with children to determine whether the applicant holds valid and active certification appropriate for the position and is otherwise eligible for employment and whether the applicant has been the subject of public professional discipline.
(4) Inquire whether the Department of Education has received notification of pending criminal charges against the applicant.
(c) An applicant who provides false information or wilfully fails to disclose information required in subsection (b) shall be subject to discipline up to, and including, termination or denial of employment and may be subject to criminal prosecution under 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities), and may be subject to civil penalties and professional discipline in accordance with subsection (l).
(d)(1) No later than twenty (20) days after receiving a request for information required under subsection (b)(2), an employer that has or had an employment relationship with the applicant shall disclose the information requested.
(2) The employer shall disclose the information on a standardized form developed by the Department of Education.
(3)(i) After reviewing the information initially disclosed under paragraph (1) and finding an affirmative response to subsection (b)(1)(iii)(A), (B) or (C), (2)(ii)(A), (B) or (C) where the prospective employing school entity or contractor makes a determination to further consider the applicant for employment, the school entity or contractor shall request that former employers provide additional information about the matters disclosed and all related records.
(ii) Former employers shall provide the additional information requested no later than sixty (60) days after the prospective employer's request under this paragraph.
(4)(i) Information received under this section shall not be deemed a public record for the purposes of the act of February 14, 2008 (P.L. 6, No. 3),2 known as the “Right-to-Know Law.”
(ii) A school entity that receives the information under this subsection may use the information for the purpose of evaluating an applicant's fitness to be hired or for continued employment and may report the information as appropriate to the Department of Education, a State licensing agency, law enforcement agency, child protective services agency, another school entity or prospective employer.
(5) An employer, school entity, school administrator or independent contractor that provides information or records about a current or former employe or applicant shall be immune from criminal liability under 23 Pa.C.S. Ch. 63 (relating to child protective services) and the act of December 12, 1973 (P.L. 397, No. 141),3 known as the “Educator Discipline Act,” and civil liability for the disclosure of the information, unless the information or records provided were knowingly false. Such immunity shall be in addition to and not in limitation of any other immunity provided by law or any absolute or conditional privileges applicable to such disclosures by virtue of the circumstances or the applicant's consent thereto.
(6) Except where the laws of other states prevent the release of the information or records requested, or disclosure is restricted by the terms of a contract entered into prior to the effective date of this section, the wilful failure of a former employer, school entity, school administrator or independent contractor to respond or provide the information and records as requested may result in civil penalties, and professional discipline where appropriate, in accordance with subsection (l).
(7) Notwithstanding any provision of law to the contrary, an employer, school entity, school administrator, independent contractor or applicant shall report and disclose in accordance with this section all relevant information, records and documentation that may otherwise be confidential under 23 Pa.C.S. Ch. 63 and the “Educator Discipline Act.”
(e)(1) A school entity or independent contractor may not hire an applicant who does not provide the information required under subsection (b) for a position involving direct contact with children.
(2) A school entity or independent contractor may hire an applicant on a provisional basis for a period not to exceed ninety (90) days pending the school entity's or independent contractor's review of information and records received under this section, provided that all of the following are satisfied:
(i) The applicant has provided all of the information and supporting documentation required under subsection (b).
(ii) The school administrator has no knowledge of information pertaining to the applicant that would disqualify the applicant from employment.
(iii) The applicant swears or affirms that the applicant is not disqualified from employment.
(iv) The applicant is not permitted by the school entity or independent contractor to work alone with children and is required to work in the immediate vicinity of a permanent employe.
(f) On or after the effective date of this section, a school entity or independent contractor may not enter into a collective bargaining agreement, an employment contract, an agreement for resignation or termination, a severance agreement or any other contract or agreement or take any action that:
(1) has the effect of suppressing information relating to an investigation related to a report of suspected abuse or sexual misconduct by a current or former employe;
(2) affects the ability of the school entity or independent contractor to report suspected abuse or sexual misconduct to the appropriate authorities; or
(3) requires the school entity or independent contractor to expunge information about allegations or findings of suspected abuse or sexual misconduct from any documents maintained by the school entity or independent contractor, unless after investigation the allegations are found to be false.
(g) Any provision of an employment contract or agreement for resignation or termination or a severance agreement that is executed, amended or entered into after the effective date of this section and that is contrary to this section shall be void and unenforceable.
(h)(1) For substitute employes, the employment history review required by this section shall be required only prior to the initial hiring of a substitute employe or placement on the school entity's approved substitute list and shall remain valid as long as the substitute employe continues to be employed by the same school entity or remains on the school entity's approved substitute list.
(2) A substitute employe seeking to be added to another school entity's substitute list shall undergo a new employment history review. Except as otherwise provided in paragraph (3), the appearance of a substitute employe on one school entity's substitute list does not relieve another school entity from compliance with this section.
(3) An employment history review conducted upon initial hiring of a substitute employe by an independent contractor, intermediate unit or any other entity that furnishes substitute staffing services to school entities shall satisfy the requirements of this section for all school entities using the services of that independent contractor, intermediate unit or other entity.
(4) An independent contractor, intermediate unit or any other entity furnishing substitute staffing services to school entities shall comply with the provisions of subsection (i)(3) and (4).
(5) For purposes of this subsection, “substitute employe” shall not mean school bus drivers employed by an independent contractor.
(i)(1) For employes of independent contractors, the employment history review required by this section shall be performed, either at the time of the initial hiring of the employe or prior to the assignment of an existing employe to perform work for a school entity in a position involving direct contact with children. The review shall remain valid as long as the employe remains employed by the same independent contractor, even if assigned to perform work for other school entities.
(2) An independent contractor shall maintain records documenting employment history reviews for all employes as required by this section and, upon request, shall provide a school entity for whom an employe is assigned to perform work access to the records pertaining to that employe.
(3) Prior to assigning an employe to perform work for a school entity in a position involving direct contact with children, the independent contractor shall inform the school entity of any instance known to the independent contractor in which the employe:
(i) was the subject of any abuse or sexual misconduct investigation by any employer, State licensing agency, law enforcement authority or child protective services agency, unless such investigation resulted in a finding that allegations are false;
(ii) has ever been disciplined, discharged, nonrenewed, removed from a substitute list, asked to resign from employment, resigned from or otherwise separated from any employment while allegations of abuse or sexual misconduct as described in subparagraph (i) were pending or under investigation, or due to an adjudication or findings of abuse or sexual misconduct as described in subparagraph (i); or
(iii) has ever had a license, professional license or certificate suspended, surrendered or revoked while allegations of abuse or sexual misconduct as described in subparagraph (i) were pending or under investigation, or due to an adjudication or findings of abuse or sexual misconduct as described in subparagraph (i).
(4) The independent contractor may not assign the employe to perform work for the school entity in a position involving direct contact with children where the school entity objects to the assignment after being informed of an instance listed in paragraph (3).
(j) An applicant who has undergone the employment history review required under this section and seeks transfer to or to provide services to another school in the same district, diocese or religious judicatory or to another school established and supervised by the same organization shall not be required to obtain additional reports before making such transfer.
(k) Nothing in this section shall be construed:
(1) To prevent a prospective employer from conducting further investigations of prospective employes or from requiring applicants to provide additional background information or authorizations beyond what is required under this section, nor to prevent a former employer from disclosing more information than what is required under this section.
(2) To relieve a school entity, school administrator or independent contractor of its legal responsibility to report suspected incidents of abuse in accordance with the provisions of 23 Pa.C.S. Ch. 63.
(3) To relieve a school entity, school administrator or independent contractor of its legal responsibility to report suspected incidents of professional misconduct in accordance with the “Educator Discipline Act.”
(4) To prohibit the right of the exclusive representative under a collective bargaining agreement to grieve and arbitrate the validity of an employe's termination or discipline for just cause or for the causes set forth in this act.
(l)(1) The Department of Education shall have jurisdiction to determine wilful violations of this section and may, following a hearing, assess a civil penalty not to exceed ten thousand dollars ($10,000). School entities shall be barred from contracting with an independent contractor who is found to have wilfully violated the provisions of this section.
(2) Notwithstanding any provision of law to the contrary, the Department of Education may initiate disciplinary action before the Professional Standards and Practices Commission pursuant to the “Educator Discipline Act” against any applicant, employe, independent contractor or school administrator who is subject to the “Educator Discipline Act” for wilful violations of this section.
(m) The Department of Education shall develop the forms for applicants and employers required under subsection (b)(1) and (2), as well as any other forms necessary to carry out the provisions of this section.
(n) As used in this section, the following words and phrases shall have the meanings given to them in this subsection:
“Abuse.” Conduct that falls under the purview and reporting requirements of 23 Pa.C.S. Ch. 63 and is directed toward or against a child or a student, regardless of the age of the child or student.
“Direct contact with children.” The possibility of care, supervision, guidance or control of children or routine interaction with children.
“School entity.” Any public school, including a charter school or cyber charter school, private school, nonpublic school, intermediate unit or area career and technical school operating within this Commonwealth.
“Sexual misconduct.” Any act, including, but not limited to, any verbal, nonverbal, written or electronic communication or physical activity, directed toward or with a child or a student regardless of the age of the child or student that is designed to establish a romantic or sexual relationship with the child or student. Such acts include, but are not limited to:
(1) Sexual or romantic invitation.
(2) Dating or soliciting dates.
(3) Engaging in sexualized or romantic dialog.
(4) Making sexually suggestive comments.
(5) Self-disclosure or physical exposure of a sexual, romantic or erotic nature.
(6) Any sexual, indecent, romantic or erotic contact with the child or student.

Credits

1949, March 10, P.L. 30, No. 14, art. I, § 111.1, added 2014, Oct. 22, P.L. 2624, No. 168, § 1, effective in 60 days [Dec. 22, 2014]. Amended 2019, Oct. 30, P.L. 460, No. 76, § 1, effective in 60 days [Dec. 30, 2019].

Footnotes

1
24 P.S. § 1-111.
2
65 P.S. § 67.101 et seq.
3
24 P.S. § 2070.1a et seq.
24 P.S. § 1-111.1, PA ST 24 P.S. § 1-111.1
Current through Act 10 of the 2024 Regular Session. Some statute sections may be more current, see credits for details.
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