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Mandatory Child Abuse and Background Clearances for Employees and Volunteers: Do You Know About Important Changes in Pennsylvania Law?

As Published in the February 2015 PELRAS Newsletter Update

Published on: Mon 8th Aug, 2016 By: Julie Aquino

In response to the Jerry Sandusky case, the Pennsylvania General Assembly made sweeping changes to the Child Protective Services Law in late 2014. As part of the changes, in October 2014 Governor Corbett signed Act 153 of 2014. Act 153 impacts, among others, all paid employees and unpaid volunteers in Pennsylvania who have "direct contact with children", or who are "responsible for the welfare of a child." 23 Pa.C.S. §§6344(a), 6344.2(a). The law defines "direct contact with children" as "[t]he care, supervision, guidance or control of children or routine interaction with children." The law also impacts any individual "seeking to provide child-care services under contract with a child-care facility or program." 

While your municipality may have long required pre-employment background checks for some, or even all, employees, the new law provides a specific mandate on the timing and type of checks now required of covered employees and volunteers. Specifically, the new law requires a renewed set of clearances every thirty-six (36) months, in addition to a set of the same clearances prior to the start of employment or service. The clearances that are required, both prior to hiring or service and on a thirty-six (36) month cycle, are as follows: (1) Criminal history record obtained by the Pennsylvania State Police ($10 fee); (2) Child Abuse Clearance obtained through the PA Department of Human Services ($10 fee); and, (3) Federal Criminal History Record information obtained by submitting a full set of fingerprints to the PA State Police or its authorized agent for submission to the FBI ($27.50 fee). Volunteers living in Pennsylvania consecutively for ten (10) years can be exempted from the Federal Criminal History Check if they have not been convicted of any disqualifying offense. 

An employee covered under the Act with current clearances issued prior to December 31, 2014 is required to obtain new clearances within 36 months from the date of their most recent clearances, or if the current clearance is older than thirty-six (36) months, by December 31, 2015. Department of Human Services advises that employees who do not have the required clearances because they were not previously required to, should obtain the clearances not later than December 31, 2015. The requirement of clearances on a thirty-six (36) month cycle for volunteers covered under the Act goes into effect as of July 1, 2015. All information provided under Act 153 is confidential and is not subject to the Right to Know Law. The Act permits the provisional hiring of an individual prior to obtainment of the required clearances if particular conditions are met and only for a single period not to exceed 90 days. 
Due to the new law, every municipality should identify all employees and volunteers who either have "direct contact with children," "are responsible for the welfare of a child," or who provide child-care services under contract with a municipal child-care program. Municipalities with recreation programs most likely have employees and/or volunteers who are impacted by the new law, and school crossing guards are undoubtedly impacted by the new law. Act 153 does not say who bears the cost for the triennial clearances. While it is the employee who is obligated to submit the clearances to the employer, the employer is required to maintain a copy and require the employee to produce the original prior to employment or service in any capacity. An employer (including administrators, supervisors or other persons responsible for employment decisions) who intentionally fails to require an applicant to submit the required information before the applicant’s hiring commits a third degree misdemeanor. 

Importantly, Act 153 also enumerates numerous convictions that constitute grounds for denying employment or volunteer work, and includes employee/volunteer reporting requirements for arrests, convictions and reports in child abuse investigations. If an employee or volunteer covered under the Act is arrested for or convicted of an offense that would constitute grounds for denying employment or participation in a program, activity or service, or is named as a perpetrator in a "founded or indicated" report in a child abuse investigation, the employee or volunteer must provide the employer with written notice not later than seventy-two (72) hours after the arrest, conviction or notification that the person has been listed as a perpetrator in the state database for child abuse investigations. An employee or volunteer who willfully fails to report this information commits a third degree misdemeanor and shall be subject to discipline up to an including termination or denial of employment or a volunteer position. If an employer has a reasonable belief that an employee or volunteer was arrested or convicted for an offense that would constitute grounds for denying employment or participation in a program, activity or service, or was named as a perpetrator in a "founded or indicated" report in a child abuse investigation, or the employee or volunteer has provided notice of the same, the employer must immediately require the employee or volunteer to submit current clearances, which are to be paid by the employer. Any person who is named in the state database as a perpetrator of a founded report in a child abuse investigation committed within the five-year period immediately preceding verification is disqualified from employment or service. 

As a result of the new law, municipal employers must ensure they obtain the required pre-employment and cyclical clearances of employees and volunteers covered under Act 153, as well as taking the necessary steps upon receiving a background report indicating a disqualifying conviction under Act 153, or other information indicating an arrest or conviction.  Due to the complexities of the new law and the ramifications of non-compliance, municipal managers and human resources directors are advised to consult with legal counsel to determine obligations under the new law.