In the wake of the Jerry Sandusky sexual abuse scandal, Pennsylvania lawmakers pushed through amendments to the state Child Protective Services law that requires all teachers, staff, administrators, contractors and volunteers to go through a pretty rigorous clearance process before they are allowed to work with children.
While it is hard to argue with efforts to keep children safe, it is essential for employers to understand that the new clearances required by the state could still leave holes in school background checks when you are making a hiring decision.
- Requirement: Criminal History Record from the PA State Police (PATCH)
If your applicant has never left the state of Pennsylvania, the PATCH could be a good resource, but realistically, how many people have never moved around, or at least left the state on vacation? Criminal records from previous states of residence and anything that might have happened while traveling to other states will not show up here. In addition to the limited reach, the results from this screen can take 2 to 6 weeks to come back.
- Requirement: Child Abuse Clearance
The law requires clearance through the PA Department of Public Welfare, which, again only searches records in Pennsylvania. It can also take several weeks to receive the results.
- Requirement: Federal Criminal History Record Information
This is just a search of the FBI fingerprint database. We have written extensively about why employers should not rely on this database when making hiring decisions. Local law enforcement agencies upload fingerprints from every person charged, or just detained, but very few agencies manage to provide the federal system with the final outcome of the case. A study by the National Employment Law Project found that 1-in-2 FBI fingerprint records are flawed. It’s estimated that half a million workers are penalized when applying for a job because erroneous information comes back from the FBI.
Relying only on these requirements will give employers a false sense of security.
This is a clearance process to decide if someone is safe to be around children, but it is filled with holes from the employer’s perspective. For one thing, it doesn’t take Fair Credit Reporting Act (FCRA) guidelines into account. Not filtering screening results with the FCRA guidelines could set you up for a lawsuit. For example, let’s say a 20 year old arrest record comes up during one of these searches and you use it to deny an offer of employment. If this arrest never resulted in a conviction, you may not be in compliance with the FCRA. According to the FCRA, convictions can be used after the 7 year mark for applicants earning $75,000 per year or less. Had you worked with a background screening provider, best practices would dictate that any results that fall outside the guidelines should not be included in the report, which helps to keep you out of trouble.
In addition to maintaining a compliant hiring process, a background screening provider will conduct several other searches including a Social Security Number Trace to identify where your candidate has lived. A search of criminal records in all of those areas, as well as a supplemental National Criminal Records Database search which includes a 50 state sex offender search, will help ensure that you are performing a comprehensive background check.
Our advice to anyone faced with complying with the new PA 153 regulations is to let your screening provider clear all of your applicants BEFORE having them fill out the state mandated forms. It will save you a lot of time and frustration and helps to protect you from negligent hiring questions down the road.