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Legal Updates

New Connecticut Law Illustrates Growing Background Check Obligations For Schools

Over the past few years, incidents of inappropriate teacher-student relationships have increasingly captured the public’s attention. From movies to front-page headlines detailing civil lawsuits against schools or criminal prosecutions of perpetrators, incidents ranging from inappropriate text message exchanges to allegations of sexual assault and rape have garnered both local and national attention.

A growing number of states, including Connecticut, Oregon, Missouri, Pennsylvania, and Texas, have responded with new legislation intended to ensure tougher background checks and vetting requirements for educators. One of the main goals of such laws is to prevent school employees from quietly resigning amid allegations of inappropriate sexual or other personal conduct and obtaining a job at another school that is unaware of the circumstances—a practice often referred to, for better or worse, as “passing the trash.”

Legislation recently enacted in Connecticut is illustrative of this overall trend. Initially, in 2016, Connecticut passed a law that strengthened applicant background check requirements for public schools, including by requiring schools to contact applicants’ current and former employers to request their employment history. Subsequently, in the summer of 2017, Connecticut expanded those requirements, through legislation known as Public Act 17-68, to cover independent schools. Public Act 17-68, which took effect on July 1, 2017, also added a number of new requirements for Connecticut independent schools, such as mandatory Department of Children and Families (“DCF”) registry and national and state criminal record checks, as well as more robust screening protocols for substitute teachers and contractors, all aimed at promoting student safety and preventing “passing the trash” among Connecticut schools.

The Connecticut law has implications for independent schools across the nation. First, schools in all states, not just Connecticut, should anticipate receiving requests from Connecticut schools concerning the backgrounds of current and former employees. Consequently, all independent schools should prepare guidelines for responding to these requests. Second, the Connecticut law provides a useful set of best practices that any independent school should consider in reviewing and updating its own background check policies and practices.

Connecticut Public Act 17-68

Under the new Connecticut statute, every applicant seeking employment at a Connecticut independent school must do the following:

  • Submit to a background check of the DCF abuse and neglect registry before hire.
  • State whether the applicant has ever been convicted of a crime or currently has criminal charges pending against him or her. (In this respect, Public Act 17-68 stands as an exception to Connecticut’s “ban the box” law, which generally prohibits employers from asking about criminal history on an initial application form.)
  • Satisfactorily pass a state and national criminal history records check within 30 days from the date of employment.

These criminal history checks for applicants are a mandatory requirement for all new hires at Connecticut independent schools. Schools are also required to cover all fees associated with the required background checks.

Public Act 17-68 also expanded Connecticut independent schools’ obligations in reviewing applicants’ references and employment history. For instance, schools must now obtain for each applicant:

  • The applicant’s employment history (including the name of, and contact information for, each school for which the applicant has worked).
  • Written authorization permitting the applicant’s former or current employers to disclose information about the applicant’s employment history.
  • A written statement regarding whether the applicant has been investigated for, disciplined for, or convicted of abuse, neglect, or assault, and whether the applicant has had a professional or occupational license or certificate suspended or revoked for such misconduct.

The Connecticut law also requires schools to contact (via telephone or in writing) an applicant’s current and former employers and, using a specific form provided by the state, request the disclosure of certain information. The recipient schools have five business days from receiving the request to respond. While Connecticut does not have jurisdiction over schools beyond its borders, a school must make a “documented good faith effort” to contact the current and former employers listed by the applicant—defined under the statute as at least three telephonic requests made on three separate days.

In addition, Connecticut schools must ask the state Department of Education (“DOE”) for information about: (i) the applicant’s eligibility for any position requiring a teaching certificate, license, or permit; (ii) any discipline given to the applicant for abuse, neglect, or sexual misconduct; and (iii) any criminal convictions or pending charges against the applicant.

The new Connecticut law also affects a number of employment practices beyond just hiring practices. Most notably, independent schools are now prohibited from entering into any contract, such as a separation agreement, that would suppress information about an investigation of an employee’s suspected abuse, neglect, or sexual misconduct.

Recommendations For Schools

Connecticut independent schools should review Public Act 17-68 thoroughly and, with the assistance of counsel, revise their policies, practices, and forms as necessary to ensure compliance with the various components of the new law.

Furthermore, every independent school should give thoughtful consideration to its own employment background check and vetting practices and how those practices might be strengthened. We suggest that schools take the following steps, with the guidance of counsel:

  • Educate themselves as to their legal obligations to report or disclose sexual misconduct, including to state agencies and potential employers. In particular, schools should have clear protocols for addressing reference requests from other schools, including those in states with pass-the-trash mandates.
  • Update their employment applications to include questions about past incidents of abuse, neglect, or sexual misconduct, to the extent permitted by applicable background check and ban-the-box laws.
  • Ensure that their employment application certifications, separation agreements, reference releases and similar forms give them appropriate discretion in determining whether to report or disclose such information.
  • Carefully review and update relevant policies in their employee handbooks, including those relating to interpersonal misconduct, discipline, employment references, and disclosure to future employers.

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Schwartz Hannum’s team of education lawyers has a wealth of experience advising independent schools in issues relating to background checks, as well as sexual misconduct and other boundary crossing. If you have any questions about these issues or need assistance with any other employment-related matters, please feel free to contact us.