Transcript 2004 IDEA Amendment: The New Discipline – When Disability

TUETH
KEENEY
COOPER
MOHAN &
JACKSTADT
P.C.
MoASBO
Support Conference
Legal, Practical and PR Issues
Surrounding Background
Checks
Presented by
November 12, 2012
Melanie Gurley Keeney, Esq.
November 12, 2012
Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C.
34 N. Meramec, Suite 600, St. Louis, MO 63105
(314) 880-3611 - [email protected]
Background Checks

What you should know:
Legal requirements
 Personnel Implications—What happens if
you discover something?
 Policy and PR Issues
 Practical “Do’s and Don’ts”

Legal Considerations

What happens if your district hires
someone, neglects to do the
background check and the person
injures a student or staff member?
Negligent Hiring?
 Does sovereign immunity apply? Can
individuals be sued?

Legal Considerations

What happens if your district has a
policy requiring ongoing criminal
background checks, and the clerk in
charge of ordering those goes on an
extended leave of absence.
Unfortunately, the checks are not
completed and an employee injures a
student or employee? Liability?
Legal Requirements

Section 168.133(1)

Requires criminal background checks,
including FBI background checks, on all
persons authorized to have contact with
children, employed with a school district
after January 1, 2005, prior to such
individual having contact with any
pupil.
Legal Requirements

Are volunteers covered under Section
168.133(1)
Language of the statute – “all persons
authorized . . .”
 MSBA policy IICC and Administrative
Procedure IICC-AP.
 What do you do?

Other References

Contract Employees
Reference to criminal background checks in
contract
 Policy language
 What are the consequences?


At-will Employees
Policy language, MOUs, CBAs
 Consequences

Practical and Legal Issues

Employment Application

What does your application say about
disclosure of crimes?
Employment contingent on satisfactory
outcome of criminal background check
 Sign certification that all information is true,
correct and complete
 False or misleading statements will result in
refusal to hire, discipline up to and including
termination

How Far Can You Go?


Have you ever been arrested for, charged with,
pled guilty or nolo contender (no contest) to,
entered into any plea? Have you ever been
convicted of any felony or misdemeanor offense?
Have you ever received an suspended imposition
of sentence (SIS), other than for a minor traffice
violation (DUI/DWI is not considered a minor
offense)? Have you ever had a record expunged
or closed?
RSMo. Sections 43.540 and Section 610.120
Background Checks
What happens if you find out an
employee did not disclose something
material on a background check?
 Employment Action

Do nothing, discharge, suspend?????
 Did he/she breach his/her contract?
 Did he/she willfully violate board policy?


Is there a due process requirement?
Background Checks

How do you handle negative information or
failure to disclose?
Consistency Issues
 MHRA, Title VII and other considerations
 Nature of offense, severity, frequency or
temporal proximity, final resolution and
relationship to job duties

Background Checks
Confidentiality
 In Missouri, criminal background check
results are confidential and should not be
made available, copied, or released to anyone
other than the applicant who is the subject of
the check or the district or its representatives.
 District employees must be aware of
confidential nature of information.

Practicalities

Sources of Background Checks

Highway Patrol? FBI? Family Care Safety
Registry (FCSR), Children’s Division,
Others?
How long does it take to get the
background check back?
 What do you do in the interim?

Legal Requirements

Impact of Amy Hestir Act

Criminal background checks must include a
search of publicly available information in
an electronic format that displays
information through a public index or
single case display.
Practicalities
Cost Issues
 What does DESE do?
 Do you do ongoing criminal background
checks?

Cost?
 Policy Issues
 Sometimes you find something out you
didn’t want to know.

Practicalities

Hiring Procedures
Verification of References
 Verification of credentials and education
 Suspicious gaps in employment
 Sexual Offenders Lists
 Google Applicant
 Facebook, Twitter and other Social Media
accounts

Bus Drivers
RSMo. Section 168.133(1) says schools
are responsible fore background checks
on bus drivers.
 What do you do if you contract out
transportation?
 Note that stature provides that drivers
may work while the district is waiting.


What is your practice?
Credit Checks
Do you run credit checks?
 Risks

Amy Hestir Considerations
RSMo. Sections 160.261 and 162.068)
 School districts are required to report
past allegations of sexual misconduct
with a minor student or substantiated
findings by Children’s Division to new
employers who ask for a reference.
 Should you ask?
 Release from applicant?

Tips
Have a procedure to ensure that your
background checks are being handled in a
timely and consistent manner.
 Continue to periodically check background
records after hire. Follow your policy.
 Create standard practice for checks and stick
to it.
 Handle information consistently. Avoid
discrimination.


Questions?