1. MoASBO Support Conference Legal, Practical and PR Issues Surrounding Background Checks November 12, 2012 Presented by 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 - mkeeney@tuethkeeney.com

2. 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”

3. 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?

4. 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?

5. 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.

6. 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?

7. 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

8. 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

9. 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

10. 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?

11. 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

12. 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.

13. 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?

14. 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.

15. 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.

16. 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

17. 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?

18. Credit Checks Do you run credit checks? Risks

19. 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?

20. 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.

21. Questions?