Act 153 - for Strict Measures to be Employed When Choosing People to Provide Care and Guidance to Children - Case Study Example

Act 153 Guideline Name Institution Introduction The Child Protective Services Law in Pennsylvania has been amended severally over the years to increase the protection of children. The most recent of these amendments has been through Act 153 of 2014 which focuses on conducting background checks for individuals who have contact with children (Berman, 2014). These background checks relate to the person’s criminal history and child abuse clearances. The Act ensures that the people dealing with children are not a danger to them. The requirement, therefore, is that all employees or contractors of institutions dealing with children have to undergo criminal background checks. This also includes conducting child abuse clearances. One of the changes to the Child Protective Services Law introduced by Act 153 is the requirement that all volunteers to institutions dealing with children must also undergo the criminal background checks. This means that whether someone is an employee, a prospective employee, a volunteer or a contractor of an institution dealing with children, they are required to undergo the checks as stipulated by the Act (The Center for Children’s Justice, 2014). Persons governed by the Act Act 153 is meant to apply to all individuals who have contact with children. Section 10 of the Act which amends section 6344.2 of the Child Protective Services Law provides that people who have direct contact with children and are governed by the provisions of the act are those people involved in giving care, guidance, supervising or have control of the children (Pennsylvania General Assembly, 2015). This means that all people whose position ensures that they have constant or routine interaction with children are bound by the provisions of the Act (Pennsylvania State Education Association, 2015). According to the provisions of Act 153, all school employees that are governed by the Public School Code of 1949 are, therefore, subject to the provisions of the Act. Section 8 provides that the provisions of the act apply to (Compliance Department, 2015): 1. Foster parents 2. Any person employed by child-care services 3. Any parents who want to adopt a child 4. All family dare care providers that are self-employed 5. Any person aged 14 years or older who is applying for a paid position that involves direct contact with children. 6. Any contractor of a child care facility that seeks to provide child care services. 7. Any person who has attained 18 years who lives for a minimum of 30 days in a year in a foster parent’s residence or that of a parent who intends to adopt a child. 8. The employees to whom the Public School Code applies and the employees not covered by the Code but are within the purview of the scope of the application of the Act. All employees of a school are bound by the provisions of the Act and are, therefore, required to ensure that they conduct the clearances. The definition of a school under the Act includes all institutions that offer elementary as well as secondary and post-secondary education. This means that universities and colleges are bound by the provisions of the act (Dickerson, 2007). However, in all these institutions, the persons required to obtain clearance reports are only those that have direct contact with children. This means that the persons who do not have direct contact with children are not required to obtain the clearance reports (Levashina & Campion, 2009). The clearances required An employee, prospective employee, contractor or a volunteer whose job requires having contact with the children is mandated to carry out three clearances before such person is allowed to provide child care services. First, the person is required to obtain a report of his/her criminal history from the State Police (Millersville University, 2014). This is to ascertain that the person has not been convicted of any offence that amounts to a ground for disqualification of employment under the act. Secondly, the person must obtain a report from the department of public welfare that indicates that the person has not been included in the list of the people considered to be perpetrators of child abuse. This requirement is to ensure that the person seeking the position as an employee or as a volunteer does not have a record of abusing children indicated in the statewide database (Gerlach, 2005). The person is also required to obtain a report from the FBI through submitting to a full set of finger prints check through the Pennsylvania State Police (The Pennsylvania State Education Association, 2015). This is meant to show that the person does not have a criminal history from the FBI database that may lead to disqualification. This requirement may, however, be waived in the case of a volunteer where the person has for the last ten years been living in the state. Such person will also be required to affirm that they have not been convicted of one of the disqualifying crimes provided under section 6344(c) (Pennsylvania Department of Human Services, 2015). There is also another requirement for employees and volunteers other than obtaining the three clearances under the act. An employee or a volunteer is also required to notify their employer or administrator of an arrest or conviction of certain offenses (Giglio, 2014). This also includes situations where the employee is alleged to be a perpetrator in a founded report. The notification period is 72 hours of the arrest or conviction. The costs of the clearances The costs of these clearances vary depending on the clearance required. The state police criminal record check costs $10 which is similar to the cost of the child abuse clearance history costs. However, the cost of the FBI criminal background check is higher and stands at $28.75. The Act is silent on whether it is the employee or the employer who is to bear the costs of these clearances. However, the wording of the act places the obligation on the employee, prospective employee or the volunteer to acquire the clearances. This means that it is also the responsibility of the employee or the volunteer to pay for the costs of obtaining the clearances (Pennsylvania Department of Human Services, 2015). The employers may choose to pay for the costs of the clearances through establishing business accounts for the payment. However, this does not mean that it’s the responsibility of the employer to pay for the cost. The responsibility of the employer is mainly to ensure that the clearances are submitted before the applicant can be approved. However, where the employer beliefs that the volunteer or the employee has been arrested or convicted and requests the employee to present current information on the clearances, the cost of obtaining the clearances under such a situation will be borne by the employer. Disqualifying crimes The objective of having the clearances before a person can be allowed to work in institutions dealing with children is to ensure that none of these persons have previously committed crimes that would be considered to be harmful to children (Western, 2008). An employee, volunteer or an independent contractor who is found to have committed a disqualifying crime should not be allowed to work in situations where they have direct contact with children. This may be where the person has been listed as a perpetrator of a crime that involves the abuse of children or is connected to such a crime. (Finkelhor, 2009). In addition to this, any person who has been convicted of a crime involving abuse of drugs or other connected crimes within a period of five years is also considered as disqualified from such employment. Any person who has committed crimes related to homicide, kidnapping, assault, stalking and sex crimes such as prostitution are also disqualified from working in institutions where the person will have direct contact with children (Millersville University, 2015). The timeline for obtaining clearances Act 153 has added a new section 6344.4 that sets the timetable for obtaining the clearances for employees as well as volunteers. Employees and volunteers are generally required to acquire the clearances at the beginning of their employment. This means that they are required to submit the clearances as they apply for the positions in the institutions dealing with children. Once they have passed this stage, the employee or the volunteer can then be approved or given the chance to work with children (The School District of Philadelphia, 2015). The enactment of Act 153 led to the requirement for all volunteers to obtain clearances after every 36 months starting from July 1, 2015 (Allegheny College, 2014). This means that the failure to obtain these clearances with in this period means that the volunteer has contravened the act and is, therefore, guilty of a misdemeanor. School employees, on the other hand, are also required to obtain the clearances every 36 months from the last time they obtained the clearances. With the amendment introduced by the Act, any employees that had obtained the clearances before the amendment must, therefore, obtain current clearances within 36 months from the date of the last clearances. This provision ensures that the employer is informed of any criminal record that may occur while the employee is still under the contract of employment (Berman, 2014). In the case where after submission of the clearances the employer realizes that the employee or the volunteer has been involved or convicted in a disqualifying crime, the employer has the responsibility to terminate the employment to protect the children. Such crimes include crimes involving the use or possession of drugs. In a situation where an employee, volunteer or an independent contractor does not provide information that is current and updated after the end of the 36 months, the employer is required to exercise precaution in allowing the employee to interact with children (Pennsylvania State Education Association, 2015). The employer is required to ensure that the employee is removed from any position that enables him/her to have direct contact with the children until the current clearance reports are submitted. The employer can also choose to treat the employee as a provisional employee for a maximum period of 90 days until the clearance reports are submitted. This means that the employee would not be required to work alone with children. The employee would also have to work under the supervision of an employee who has already been cleared (Connerley et al., 2001). Provisional employees The Act has also enabled employers to employ provisional employees who have direct contact with children. However such employment cannot be for a longer period than 90 days. However, before the administrators and the employers hire a provisional employee; several conditions have to be met. First, the applicant for the position of the provisional employee must have applied for the background checks and must also submit the request forms to the employer or any other person responsible for making employment decisions. The difference between the provisional employee and any other employee is the fact that though the clearances have been applied for, the results have not yet been released. This means that the employer does not have the official clearance reports from the police. The applicant, therefore, provides the request forms for the clearances in seeking the position (Pennsylvania State Education Association, 2015). Secondly, the employer of an institution dealing with children must not be aware of any information pertaining to the applicant that may disqualify him from the position. This includes information relating to an arrest, conviction or a report of child abuse. Since the employer does not have the official reports of the clearances, this condition requires the employer not to hire the person where they have information of the involvement of the person in disqualifying crimes provided under section 111. Thirdly, the applicant is also required to make a sworn statement in written form that he has not been involved in a crime that similar to the disqualifying crimes that would have the result of disqualifying him from the position (Pennsylvania State Education Association, 2015). The conviction could have been in other states or in the federal jurisdiction. This means that the applicant should swear that that they have not been involved in the commission of any of the crimes that would disqualify him from the position whether in Pennsylvania or in any other state. Finally, the employer or an administrator is required to ensure that the provisional employee does not work alone with the children. The employer is, therefore, required to ensure that they work under the supervision of a permanent employee. This is based on the fact that the clearance reports for the provisional employee are still pending completion which means that there is no ascertaining that the person has been convicted before. The provisional employee can only be employed for a single period. Once the background checks have been released, the provisional employee can become a permanent employee at the institution where the reports indicate a clean record for the employee. However, where the reports reveal that the provisional employee had been convicted of a disqualifying crime, the employer must dismiss the employee immediately (Harris & Keller, 2005). The impact of the provisions of the Act The reason behind the enactment of Act 153 was to ensure strict measures are taken when hiring people who provide care and guidance to children. The Act was meant to protect the children from any harm or risk of harm that may be caused by the people that are employed to take care of them. Institutions dealing with children have an obligation under the act to ensure that the employees having direct contact with children obtain clearances before being hired or in the course of their employment. Children are considered to be all persons that are below the age of 18 years. All employees whose role involves children has to obtain clearance when being hired and after every three years while in employment. For institutions that accept volunteers, it is a requirement that the volunteers must also obtain clearances where the volunteer’s responsibilities will involve direct contact with the children (Blumstein & Nakamura, 2009). Institutions that deal with children are required to clearly define the role of their employees so that they can effectively determine the number of employees whose jobs will require having contact with the children. Once the employer has determined the employees who require clearances, it is important for the employer to ensure that the original copies of these clearances are submitted before acceptance. The employer will then be required to keep copies of the clearances and any other information that is required by the Act concerning the employees that deal with the children. The Act makes it clear that no person should be allowed to have contact with the children without having submitted their clearances. Further, the clearances are supposed to indicate a clean record for the person to be allowed to fill a position where they will provide care, guidance or supervision to children. The result of these provisions is that even permanent employees may be denied the opportunity to work with the children where such persons fail to update their clearances. Such persons may be treated as provisional employees where their contact with children is limited. Conclusion Act 153 provides for strict measures to be employed when choosing people to provide care and guidance to children. The requirement for clearances is supposed to ensure that people with previous history of committing crimes that are harmful to children are not the same people tasked with the responsibility of taking care of them. The objective of the provisions of the Act is to ensure that the people who take care of children do not become the same people that end up abusing the children. References Pennsylvania General Assembly (2015). 2014 Act 153. Retrieved November 25, 2015, from: http://www.legis.state.pa.us/cfdocs/legis/li/uconsCheck.cfm?yr=2014&sessInd=0&act=153 The Controlled Substance, Drug, Device and Cosmetic Act, 1972 Pennsylvania State Education Association (2015). Act 153 of 2014 background check requirements. Pennsylvania State Education Association. Berman, K (2014). Act 153 of 2014: Criminal background checks and child abuse clearances. Retrieved November 25, 2015, from: http://www.foxrothschild.com/content/uploads/2015/05/Education-Alert-December-2014-Act-153-of-2014-Criminal-Background-Checks-and-Child-Abuse-Clearances.pdf Millersville University (2014). Act of 153 of 2014 background clearances. Millersville University. The Center for Children’s Justice (2014). Act 153 of 2014: Requiring comprehensive criminal and child abuse background checks. Retrieved November 25, 2015, from: http://www.c4cj.org/files/cjar1132104backgroundchecks.pdf Gerlach, E. A. (2005). Background Check Balancing Act: Protecting Applicants with Criminal Convictions While Encouraging Criminal Background Checks in Hiring, The. U. Pa. J. Lab. & Emp. L., 8, 981. Dickerson, D. (2007). Background checks in the university admissions process: An overview of legal and policy considerations. JC & UL, 34, 419. Pennsylvania Department of Human Services (2015). Act 153. Retrieved November 25, 2015, from: http://keepkidssafe.pa.gov/cs/groups/webcontent/documents/document/C_135249.pdf Giglio A. (2014). Act 153 (Child protective services law). Retrieved November 25, 2015, from: http://www.andrewsandprice.com/wp-content/uploads/2013/06/Act-153-Action-Paper.pdf Compliance Department (2015). The impact of PA Act 153 on employment screening in higher education. Retrieved November 25, 2015, from: https://www.truescreen.com/resource-center/background-screening/the-impact-of-pa-act-153-on-employment-screening-in-higher-education/ Millersville University (2015). Act 153 of 2014 background clearances for managers and current student workers. Millersville University. Levashina, J., & Campion, M. A. (2009). Expected practices in background checking: review of the human resource management literature. Employee Responsibilities and Rights Journal, 21(3), 231-249. The School District of Philadelphia (2015). Amended background checks requirements. Retrieved November 25, 2015, from: http://webgui.phila.k12.pa.us/offices/e/ee/information-center/act-153 Blumstein, A., & Nakamura, K. (2009). Redemption in the Presence of Widespread Criminal Background Checks. Criminology, 47(2), 327-359. Harris, P. M., & Keller, K. S. (2005). Ex-Offenders Need Not Apply The Criminal Background Check in Hiring Decisions. Journal of Contemporary Criminal Justice, 21(1), 6-30. Finkelhor, D. (2009). The prevention of childhood sexual abuse. The future of children, 19(2), 169-194. Connerley, M. L., Arvey, R. D., & Bernardy, C. J. (2001). Criminal background checks for prospective and current employees: Current practices among municipal agencies. Public Personnel Management, 30(2), 173-183. Western, B. (2008). Criminal background checks and employment among workers with criminal records. Criminology & Public Policy, 7(3), 413-417. The Pennsylvania State Education Association (2015). Background checks. Retrieved November 25, 2015, from: http://www.psea.org/backgroundchecks/ Allegheny College (2014). Act 153 background clearances. Retrieved November 25, 2015, from: http://sites.allegheny.edu/hr/act-153-background-clearances/ Read More