Education Law Publications
The firm publishes a monthly "Issue of the Month" on current issues or matters of interest in the education law area. If you want more information about our education law practice or a copy of any of our articles, contact David Duff at dduff@ddtwb.com SCHOOL LAW
"ISSUE OF THE MONTH"
March 2006 BETTER SAFE THAN SORRY: Background Checks On Non-Certified Employees and Volunteers Imagine an art teacher in your district conducting a comic book design project with her elementary school students. Now imagine that teacher inviting her longtime neighbor, a professional comic book illustrator, to participate in the project as a school volunteer. Suppose the school principal talked to the illustrator and agreed to let him work as a volunteer with the art students. As you might expect, the comic book project is so successful that another teacher at the school allows one of her students to interview the volunteer for a newspaper project. In connection with the newspaper project and with permission from the student’s parents, the volunteer picks up the student after school for a visit to the nearby comic book office. However, instead of a visit to the office, the “volunteer” takes the student to his home, where he sexually molests him. Unfortunately, this “story” actually occurred in New York a few years ago. ( Koran v. New York City Board of Education , 1998). It is no surprise that following that incident, the parents of the student who was molested sued the school district for negligence in hiring, supervising, and retaining a sexually abusive volunteer. In the end, the court found that the district was not liable for the volunteer’s actions because prior to allowing him to volunteer, there was no information available that would have led the district to suspect that the volunteer might molest a student. Even so, districts can learn a valuable lesson from this case. In the interest of protecting children and preventing litigation, districts should conduct sufficient background checks on all prospective employees and school volunteers who will have contact with students. As is the usual process for hiring applicants for certified positions, districts should consider implementing pre-employment screening measures for both non-certified employees and for persons who have expressed an interest in volunteering in the schools. By thoroughly checking the criminal and employment background of every potential employee and volunteer, a district can prevent harm to students and employees, and reduce the likelihood of future lawsuits based on negligent hiring. Specifically, districts should consider: · Communicating to all applicants for employment and volunteer positions that the district may talk with prior and current employers; · Asking potential employees to sign a release that allows the district to obtain full employment references, as permitted by the South Carolina reference check statute; · Asking potential employees and volunteers who will work with children to sign a release that allows the district to conduct a criminal background check; and · Verifying that the potential employee or volunteer is not listed on the South Carolina Sex Offender Registry. South Carolina law requires applicants for teacher certification to submit to a criminal record check through the Federal Bureau of Investigation. (S.C. Code Ann. § 59-25-115). Any prior arrests or convictions of a serious nature that might affect an applicant’s fitness to teach may disqualify the applicant from receiving certification. In addition, before initially hiring a teacher, the local district must request a criminal record history from State Law Enforcement.(S.C. Code Ann. § 59-26-40(M)). There is, however, no similar requirement for non-certified employees or school volunteers. Presently, both the U.S. Senate and House of Representatives are considering legislation that would enable educational agencies to perform meaningful background checks on all job applicants who would be working near children, potentially reducing the opportunities for known sexual offenders to strike again. (S.1086; H.R.2423). If passed, the “Sex Offender Registration and Notification Act” will, in part, provide educational agencies, including local school districts, with accessto a national sex offender database and to all state criminal records databases. In the meantime, nothing prohibits a school district from conducting a name-search of potential employees and volunteers by accessing the South Carolina Sex Offender Registry at http://www.sled.state.sc.us/default.htm . Under the South Carolina reference check statute (S.C. Code Ann. § 41-1-65), prospective employers can obtain information about an applicant’s former dates of employment, pay level, and wage history without written permission from the applicant. If an applicant provides written permission for the release of information, the prospective employer also may access information about the individual’s past job performance, the reason he or she left the job, and whether the separation was voluntary. The statute provides that only if the prior employer “knowingly or recklessly releases or discloses false information” may the former employee file suit against his/her former employer for releasing the specified information. Thoroughly checking the backgrounds of all applicants and school volunteers will help ensure that no child will be injured by a district employee, and reduce the potential for lawsuits against the district. Relevant in so many areas of life, the old maxim “better safe than sorry” is no exception here. For questions or assistance with this or any other employment matter, please contact Duff and White, LLC at 1.800.639.1677.
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