Federal Bill Could Mandate Employment Background Checks in Schools

Robert Capwell

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Federal Bill Could Mandate Employment Background Checks in SchoolsIt may be a surprise to many Americans that drop their children off at school every day that the vast number of employees caring for millions of children at thousands of public and private schools across the U.S. do not undergo an employment background check.  Shockingly, there is no federal law mandating background checks even be conducted for school employees.  In fact, in 2010 the U.S. Government Accountability Office (GOA) conducted a study which highlighted “Selected Cases of Public and Private Schools That Hired or Retained Individuals with Histories of Sexual Misconduct”.  The study sites many instances of sex offenders and people with a history of sexual misconduct being hired or retained as teachers, support staff, volunteers, and contractors.  The study includes horrific stories where school officials did not conduct background checks, did nothing after knowing prior sexual misconduct, or even shuffled off prior offenders to other school districts and states with a positive recommendation. 

Here are just a few horrific examples of school negligence according to the study:

  • School officials allowed teachers who had engaged in sexual misconduct toward students to resign rather than face disciplinary action, often providing subsequent employers with positive references
  • Schools did not perform pre-employment criminal history checks due to policy or lack of time
  • Even if schools did perform background checks, they may have been inadequate in that they were not national, fingerprint-based, or recurring
  • Schools also failed to inquire into troubling information regarding criminal histories on employment applications

Currently there is no federal law regulating the employment of sex offenders in public or private schools.  For example, some states require a national, fingerprint-based criminal history check for school employment, while others do not. State laws also vary as to whether past convictions must result in termination from school employment, revocation of a teaching license, or refusal to hire.  Current laws are only a patchwork of state regulations, public and private school policies, or decisions at the school district level whether or not to conduct background checks.  There is currently no consistency in the background screening or evaluation process and no mechanism exists to share such information among other schools.  This is a huge gap in our public and private school policy and horrific for the continued safety of our children across the United States.

In May of 2013, HR2083 - The Protecting Students from Sexual and Violent Predators Act of 2013 was introduced with bipartisan support.  The Bill would amend the “Elementary and Secondary Education Act of 1965” to require criminal background checks for school employees among other safety requirements.

Here are a few provisions of the act, in its current form, which will affect schools receiving funds under the “Elementary and Secondary Education Act of 1965”:

  • The requirement of a comprehensive background check for each school employee to include a statewide criminal history search; child abuse registry search; FBI fingerprint check; and national sex offender search
  • Prohibits employment by a school if an applicant refuses to consent to a criminal background check; provides false statements in regards to a criminal background check; or has been convicted of certain types of felonies including sexual crimes against a minor
  • Requires periodic checks according to state law; state education agency guidelines; or local policy
  • Requires a copy of the background check result be provided to the candidate along with a process for timely appeal and re-investigation
  • Ensures that background check policies and procedures are posted to state educational agencies’ websites
  • The ability for education agency to share results of background checks with other education agencies
  • Schools may not knowingly transfer or facilitate the transfer of known employees that have engaged in sexual misconduct

Does the Bill go far enough to ensure comprehensive criminal background checks?

Although several points within the Bill are positive and will further protect our children, but relying on FBI fingerprint data and/or statewide criminal database information alone will not provide enough accurate and up-to-date criminal history information to conduct a comprehensive criminal background check. There are huge information gaps in statewide and FBI criminal data. In November of 2011, The United States Department of Justice, Bureau of Justice Statistics (BJS) released its latest report titled "Survey of State Criminal History Information Systems, 2010".  Nationwide, over 72 million criminal history records are accessible through the FBI’s III system and 70% of all III records are maintained by the states. In total, only 30% of records are actually maintained by the FBI. Relying solely on this information alone does not provide a sufficient level of due diligence when screening.

Best Practices for A Thorough Criminal Background Check

Although a few states do a better job than others in maintaining their state’s criminal database and reporting information to the FBI criminal records system, employers should not rely on this information as their sole source of criminal data. A comprehensive pre employment criminal background check can only be conducted by using several sources of information such as county/parish, state, federal and even proprietary national criminal database information. Remember that the original reporting jurisdiction/court provides the most current and reliable case information available. Concentrating research efforts into areas where an applicant has lived, worked or even attended school, provides a more concentrated and accurate criminal records search. Criminal information used for background screening purposes should also be carefully vetted to ensure that case information includes current and accurate case disposition information along with sufficient identifiers to properly confirm the identity of the subject’s information in question.

This Bill, in its current state, will only require limited FBI data and only include statewide information within the current applicant’s state of residence.  Remember, sex offenders are transient and once detected by the public or school community, many move onto other towns or even states to commit additional sexual acts.  This Bill should include additional language to include comprehensive screening to be conducted by background screening professionals to be successful.  We will keep you updated as to the movement on this Bill as it happens.

Employment Background Investigations Inc. works with public and private schools to develop and administer comprehensive pre employment criminal background check programs. We are committed to providing employers and our readers with valuable education and resources on changing legislation and developing cutting-edge and compliant solutions to meet federal, state, local, and international mandatory legal guidelines. EBI does not providing legal advice or counsel and nothing provided in this publication should be deemed as legal guidance or advice. Readers should consult with their own legal counsel to determine their responsibilities or if they have questions on any information provided by EBI.

Employment Background Investigations is a technology-driven innovator and leader in providing domestic and global pre-employment background checks, drug testing, occupational healthcare, and I-9 compliance solutions for employers. Founded in 1994, EBI is one of the largest background-screening firms in the country.

EBI is ISO 27001:2005 Certified – the definitive standard for information security.  EBI is also accredited through the National Association of Professional Background Screeners (NAPBS) Background Screening Agency Accreditation Program.  EBI is the only background screening firm in the world to hold both an ISO 27001:2005 Certification and to be accredited through NAPBS.

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Background Checks, Legislative Alerts

Robert Capwell

Posted By: Robert Capwell

EBI’s Chief Knowledge Officer, Mr. Robert E. Capwell, is considered one of the leading experts in the background screening industry with over 22 years of experience in the field. Mr. Capwell was a contributing author of the second edition of the ASIS Pre-employment Background Screening Guidelines and has written numerous articles and whitepapers for various publications including a periodic column on background screening for The Society for Human Resource Management (SHRM) Online. He has been quoted in The Wall Street Journal, Human Resource Executive Magazine, Entrepreneur Magazine, and several HR-related publications. Mr. Capwell speaks regularly to industry colleagues and HR Professionals both nationally and internationally.

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