1. Act 153 – Pennsylvania Criminal Background Screening Requirements

Act 153 of the Pennsylvania Child Protective Services Law (“Act 153”) was enacted by the Pennsylvania state legislature in 2014 to strengthen protections for children by mandating certain background checks for adults who have “direct contact with children.” Children means individuals under 18 years old (i.e., minors).

Act 153’s definition of “Direct Contact with Children”:

• “Direct contact with children” is defined as “the care, supervision, guidance or control of children or routine interaction with children.”
• For volunteers (i.e., non-employees), “direct volunteer contact” is defined as “the care, supervision, guidance or control of children and routine interaction with children.”
• “Routine interaction” is defined as “regular and repeated contact that is integral to a person’s employment or volunteer responsibilities.”

Under Act 153, public and private schools, as well as colleges and universities in most circumstances, are prohibited from hiring anyone who will have direct contact with minors who has been:

• Named as a perpetrator of a founded report of child abuse as defined by Pennsylvania law;
• Convicted of a felony offense under Act 64-1972 (relating to the controlled substance, drug device and cosmetic act) committed within the past five years; or
• Convicted of, or convicted of the attempt of, solicitation of or conspiracy to commit, the following crimes (including, but not limited to): criminal homicide, aggravated assault, stalking, kidnapping, unlawful restraint, rape, statutory sexual assault, sexual assault, indecent assault, indecent exposure, incest, concealing the death of a child, endangering the welfare of children, prostitution, pornography, corruption of minors, sexual abuse of children.

Under Act 153, the three Criminal Background Checks must be satisfactorily performed in order for an individual to be cleared to work with minors:

1. Pennsylvania Criminal History Records Check (PATCH) - a check of criminal history information obtained from the Pennsylvania State Police that is maintained in the Pennsylvania State Police Central Repository.
2. Pennsylvania State Child Abuse Clearance Check - a check that includes certification from the Department of Human Services whether the applicant is named in the statewide database as an alleged perpetrator in a pending, indicated or founded child abuse investigation in Pennsylvania.
3. Federal Criminal History Records/FBI Check - a check of federal criminal history information obtained by the submission of a full set of fingerprints to the Pennsylvania State Police or its authorized agent.

These checks are collectively the “Criminal Background Checks.”

 

2. Policy

i. Employees

The College is committed to the security and safety of its students, faculty, staff and visitors, as well as the highest hiring standards. The College thus requires pre-employment background checks, including Criminal Background Checks for all faculty and staff, and for certain student employees.

Students employed by the College whose employment responsibilities involve direct contact with children must comply with the Criminal Background Checks. Whether a student’s responsibilities include direct contact with children will be determined by the College.

Act 153 also mandates that all current employees must self-disclose, by notifying the Human Resources Department within 72 hours, any criminal arrests, charges, or convictions for offenses statutorily prohibited by Act 153, or notifications that the employee has been listed as a perpetrator in a statewide database by the Pennsylvania Department of Human Services. Supervisors notified of the above arrests, charges, convictions or notifications must also report the same to the Human Resources Department and are subject to discipline, up to and including termination, for failure to do so.

Criminal Background Checks must be renewed every 60 months, and renewal is a condition of continued employment.

The College’s best practice will be to refrain from hiring individuals under the age of 18. Minors will be hired only if all personnel in the hiring department or division have completed a Criminal Background Check. Any exceptions to this practice must be approved by the Director of Human Resources.

ii. Volunteers

The College also requires Criminal Background Checks for all non-student volunteers. Notwithstanding this requirement, any volunteers who have lived continuously in Pennsylvania for more than the previous 10 years do not need the FBI background check if they sign an affidavit that they are not disqualified from volunteering in the program under Pennsylvania law.

iii. Student Volunteers

The College also requires Criminal Background Checks for student volunteers who have direct volunteer contact with minors while participating in a College-sponsored program. Notwithstanding this requirement, student volunteers who have lived continuously in Pennsylvania for more than the previous 10 years do not need the FBI background check if they sign an affidavit that they are not disqualified from volunteering in the program under Pennsylvania law.

Act 153 provides an exception for Criminal Background Checks for student volunteers if the College determines that a student volunteer is (i) enrolled in a school, (ii) not responsible for the child’s welfare, (iii) volunteering at an event that occurs on school grounds and the event is sponsored by the school, and (iv) not responsible for children who are in the care of a child-care service. Under Act 153, a student volunteer is responsible for a child’s welfare if the student volunteer “provides permanent or temporary care, supervision, mental health diagnosis or treatment, training or control of a child in lieu of parental care, supervision and control.” (This exception does not apply to College employees, including student employees.)

iv. Contractors, Subcontractors and Vendors

Contractors, subcontractors and vendors who will have direct contact with minors are required to provide proof of satisfactory Criminal Background Checks. The College has sole discretion to determine who has the capacity for “direct contact with minors” but generally considers those contractor or vendor employees to include (but not be limited to) anyone with access to student residence halls or College athletic facilities, such as contractors hired to clean, service, or repair these facilities; as well as anyone working with sports camps, day camps, or daycare services. However, the College, at its discretion, may require Criminal Background Checks for any contractor due to the nature of work performed and the nature of the contractor’s interaction with the community. The relationship owner for each contractor, subcontractor and vendor will ensure these procedures are followed.

v. Facilities Users

Regular users of College facilities, such as the gym or pool, must also submit to Criminal Background Checks if they will have direct contact with minors. Whether a facilities user will have direct contact with minors will be determined by the College.

 

3. Procedures

Timing

The College will commence the background check process once a candidate has been given (oral or written), and accepted (oral or written), an offer of employment contingent upon the successful completion of a background check (see Section 4, below, for more detail).

The College will use a third-party background check agency, or Consumer Report Agency (CRA), to conduct all background checks. For existing and newly hired employees, the information collected by the CRA includes, but is not limited to, Criminal Background Checks, education, employment history, credit and reference checks, motor vehicle reports and a sex offender registry check. This information will be obtained with the full knowledge and acquiescence of the individual and in compliance with applicable federal and state statutes, such as the Fair Credit Reporting Act and Consumer Credit Reform Act of 1996.

Notice and Consent

The College will conduct the background check only after the candidate completes and signs a notice and consent form. Refusal to sign the notice and consent form will result in the immediate withdrawal of the offer. Volunteers must complete notice and consent forms.

The College reserves the right to decline to hire, to discipline, or to terminate, an individual or employee who has omitted or misrepresented, whether verbally or in written materials (such as an application or resume), relevant information during the hiring or background check process.

Determination of Suitability for Employment

The College will use the results of the CRA background checks to determine whether candidates are suitable for the positions into which they have been hired. Unless otherwise provided by law, a criminal conviction does not conclusively prohibit employment. The College will consider on a case-by-case basis whether a conviction is relevant for continued employment in the position, including the degree of the conviction and its relation to the position for which the employee was hired; amount or pattern of convictions; length of time since conviction; age of employee at time of conviction; and credible references provided by past employers since the conviction.

The types of negative background results that may lead to an assessment that an individual is not suitable for the position may include, but are not limited to, those convictions prohibited under Act 153, as well as: arson, drug convictions relating to manufacture/sale/distribution, finance-related crimes (such as bribery, embezzlement, fraud, identity theft, larceny, money laundering, shop lifting, tax evasion), manslaughter, murder, assault, battery, burglary, domestic violence, robbery, firearms convictions, extortion, and hate crimes.

 

Notification of Adverse Results

The College will adhere to the following procedures for notifying an applicant or employee about a CRA background check report that reveals an adverse result and/or criminal conviction.

• If a background check report reveals an adverse result or criminal conviction that may impact employment, the College will provide notice in writing to the applicant or employee, including a copy of the CRA report, a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act”, and the timeframe for the reasonable opportunity (no fewer than ten days) to (i) dispute the accuracy of a report or (ii) provide further information to enable the College to make a determination of suitability for continued employment.
• A final decision will not be made until the new information is considered or the applicant or employee fails to respond in the reasonable time frame.
• If a final determination is made to withdraw the conditional employment offer or terminate employment, the College will advise the employee, in writing, of the adverse action and provide the name, address, and telephone number of the CRA. The College will notify such individuals of their rights to dispute the report’s contents with the CRA.

Confidentiality

All background checks are reported to the Human Resources Department and are kept in confidential files that are separate from employee’s personnel files. Reports are shared only on a strict need-to-know basis. If a report includes information about a relevant criminal conviction, this information may be shared, as necessary, with hiring manager and/or the immediate supervisor of the position, and/or the vice president of the hiring department.

4. Conditional Employment Offers

All offers of employment are conditional based upon the College’s receipt of the background check screening information and assessment of that information as stated above.

Employment may begin prior to completion of the background checks only under the following circumstances: (1) if the College determines that the employee will not have direct contact with minors and (2) with written approval from the Director of Human Resources if a compelling need is established. In these limited cases, such employees may start only if:

• An FBI Fingerprint Check, Pennsylvania State Criminal Records Check and Pennsylvania Child Abuse Clearance Check have been submitted;
• The new employee signs an affidavit that the employee would not be disqualified from service because of a known conviction or child abuse report; and
• The new employee is not permitted direct or unmonitored contact with minors while the Criminal Background Check is pending.

Note that volunteers who will work with minors must have a complete Criminal Background Check prior to their arrival on campus.

5. Portability of Prior Certifications

Under Act 153, if an applicant for employment or to serve as a volunteer has up-to-date Criminal Background Checks – for example, from a prior Pennsylvania employer or volunteer program – the College may, at its discretion, elect to use these existing Criminal Background Checks if the applicant (i) signs an affidavit that the applicant has not been disqualified from service because of a known conviction or child abuse report, and (ii) provides a copy of the Criminal Background Check clearances to the College. The applicant is required to renew the Criminal Background Checks upon the 60-month expiration date of the original Criminal Background Checks as a condition of employment.