Focus

Above Grade When Conducting Criminal Background Checks

by Suzanne K. Bogdan

Determining who is fit for employment in a school setting can be a daunting task. Most schools today conduct fingerprint background checks on applicants, with employees being rechecked on a rolling basis.

 

The reasons are clear: Not only do schools want to hire the most qualified candidates for positions, they also must consider the safety of the children.

 


BogdanSuzanne K. Bogdan

Although most states have statutory guidelines specifying the hiring processes for public school employees, few states address hiring issues for private schools. Private schools are guided either by their accrediting entity (many of which require fingerprint checks as a condition of hiring) or general common law principles pertaining to negligence.

Under a negligence theory, a school district could be held liable for failing to conduct a criminal background check on employees in two ways: (1) negligence for the failure because background checks are generally accepted as standard practice within the industry or (2) when a school knows facts that would lead a reasonably prudent person to investigate a prospective (or current) employee. In other words, if the school district becomes aware an employee may have engaged in child abuse, domestic abuse, battery or some other offense, it would have a duty to investigate before allowing that individual to interact with children.

Gauging Evidence
What information from the background check should preclude employment with the school district?

Although uniformity normally is encouraged in hiring decisions, the variations in types and severity of criminal convictions lends criminal background checks more toward a case-by-case analysis. Therefore, school districts must decide when a criminal conviction provides a legitimate business reason for denying or terminating someone’s employment or association with the school.

In judging what constitutes a reasonable business reason, school districts should rely on the following factors: the job-relatedness of the conviction; the number of convictions; the proximity in time of the convictions to the application; the nature and severity of the conviction; and any evidence of rehabilitation. In the absence of a statute specifying offenses that would preclude employment, any conviction that evidences harm or cruelty toward children, the elderly or disabled, domestic abuse, battery, assault, serious drug offenses, violence, offenses reflecting dishonesty (theft, embezzlement, etc.), or other similar unacceptable behavior would likely eliminate the individual from consideration. Further, dishonesty in answering questions on the application can be grounds for not hiring the individual or for terminating someone already hired, as long as the school district treats similar circumstances in the same way.

Once the employee is hired, the school should have a process to recheck employees’ criminal backgrounds periodically, such as on a five-year rolling basis. In addition, school districts should have a policy in their employee handbook that makes clear that employees have an obligation to report any change in their criminal background status (including convictions or traffic offenses if the employee drives) within 24 to 48 hours of the event. This will give the district the opportunity to assess whether it needs to make changes in the employee’s responsibilities or employment status.

Legal Requirements
Do specific procedures exist for the school’s use of criminal background reports?

If the school district uses a third-party agency to obtain the criminal background check, it must comply with the Fair Credit Reporting Act. Among other things, this federal law requires consent for the background check (called a “consumer report”) and prior notice to the individual and a statement of his or her rights when an employer is considering making an adverse decision based on the results of the consumer report. This gives the individual a chance to correct any problems that may be on their criminal background record. Once the employer makes a final decision, it should give the individual notice of this decision in writing.

Separately, school districts need to understand what the criminal background report actually says before making any decisions. For the most part, schools should be assessing convictions, not arrests, due to a potential for race or national origin discrimination. If districts see a problematic pattern of arrests, however, they should work with counsel to determine whether the information is sufficient to make a negative decision.

Criminal background checks generally include legal terms and abbreviations that can be difficult to decipher. Terms such as “Plea — Not Guilty” or “Plea Guilty” are clear to most people. Abbreviations and legal shorthand are more difficult. “NOL PROS,” or nolle prosequi, is a term that means the charges were abandoned by the prosecution.

Some reports will reflect the arrest but will not indicate the final disposition. In such cases, the school district needs to ask for information from the individual or the criminal background agency to learn the final outcome. Further, some states even have a specific provision that allows courts to withhold adjudication after the imposition of probation without a conviction, meaning a prospective employee could properly deny having been convicted of a crime on a job application. Some state and federal governmental agencies do not recognize the concept of adjudication withheld, meaning they will treat it as a conviction.

Additionally, some school board administrative regulations now disqualify volunteers due to prior conduct, regardless of whether there was a conviction.

In any of these circumstances, if districts are going to make a decision regarding an applicant or employee based on the results of the criminal background search, they need to ensure they understand what the report actually says and that their decision and process complies with the requirements of both federal law (if you are using an agency) and the state law where the school conducts business.

Suzanne Bogdan is an attorney specializing in education law with Fisher & Phillips in Fort Lauderdale, Fla. E-mail: sbogdan@laborlawyers.com. Attorney David Gobeo of the same firm contributed to the article.