These background checks require employers to verify "dates of employment" along with any past incidents of "child abuse" or "sexual misconduct."
Covered Employers and Terms:
This legislation applies to any school district, charter school, nonpublic school, or contracted service provider holding a contract with a school district, charter school, or nonpublic school. This article will refer to the above, generally, as "employers."
The legislation defines "child abuse" as any "conduct that falls under the purview and reporting requirements of P.L.1971, c.437 (C.9:6-8.8 et seq.) and is directed toward or against a child or student, regardless of the age of the child or student." Additionally, the legislation defines "sexual misconduct" as "any verbal, nonverbal, written, or electronic communication, or any other act directed toward or with a student that is designed to establish a sexual relationship with the student, including a sexual invitation, dating or soliciting a date, engaging in sexual dialogue, making sexually suggestive comments, self-disclosure or physical exposure of a sexual or erotic nature, and any other sexual, indecent or erotic contact with a student."
Required Materials from Applicants:
Employers must request the following from a prospective employee who will have regular contact with students:
- A list, including the name, address, telephone number and other relevant contact information of the applicant's (1) current employer, (2) former school employers within the last 20 years, and (3) all former employers within the last 20 years where the applicant held a position involving "direct contact with children"
- An authorization allowing for the applicant's past and/or current employers to release records that might reveal child abuse or sexual misconduct
- A written statement declaring whether the applicant "has been the subject of any child abuse or sexual misconduct investigation by any employer, State licensing agency, law enforcement agency, or the Division of Child Protection and Permanency in the Department of Children and Families, unless the investigation resulted in a finding that the allegations were false or the alleged incident of child abuse or sexual misconduct was not substantiated"
- A written statement declaring whether the applicant "has ever been disciplined, discharged, non-renewed, asked to resign from employment, resigned from or otherwise separated from any employment while allegations of child abuse or sexual misconduct were pending or under investigation, or due to an adjudication or finding of child abuse or sexual misconduct"
- A written statement declaring whether the applicant "has ever had a license, professional license, or certificate suspended, surrendered, or revoked while allegations of child abuse or sexual misconduct were pending or under investigation, or due to an adjudication or finding of child abuse or sexual misconduct"
Employer Duty to Review Materials
This legislation requires prospective employers to review the required materials provided by an applicant and contact the applicant's past and current employers listed. The prospective employer must request the following from the applicant's past or current employers:
- The dates of the applicant's employment
- A statement whether the applicant "was the subject of any child abuse or sexual misconduct investigation by any employer, State licensing agency, law enforcement agency, or the Division of Child Protection and Permanency in the Department of Children and Families, unless the investigation resulted in a finding that the allegations were false or the alleged incident of child abuse or sexual misconduct was not substantiated"
- A statement whether the applicant was "disciplined, discharged, non-renewed, asked to resign from employment, resigned from or otherwise separated from any employment while allegations of child abuse or sexual misconduct were pending or under investigation, or due to an adjudication or finding of child abuse or sexual misconduct"
- A statement whether the applicant "has ever had a license, professional license, or certificate suspended, surrendered, or revoked while allegations of child abuse or sexual misconduct were pending or under investigation, or due to an adjudication or finding of child abuse or sexual misconduct"
Past and/or current employers must provide the requested information "no later than 20 days after receiving a request." If a prospective employer does not receive the requested information within the 20-day time frame, the employer may automatically disqualify the applicant from employment. Prospective employers may review an applicant's materials over the telephone, electronically, or through written communications. Any review conducted over the phone must be subsequently documented in writing by the prospective employer.
Conditional Hiring
Prospective employers may employ or contract an individual on a 90-day provisional basis, pending review of the individual's materials, only if:
- The applicant has provided all required materials to the prospective employers
- The applicant's past employers have no knowledge or information pertaining to the applicant's past incidents of child abuse, sexual misconduct, or licensure suspensions
- The applicant's past employers determine that "special or emergent circumstances exist that justify the temporary employment of the applicant"
Employer Limited Liability
Employers are not liable for terminating an applicant due to information received from a past or current employer. Additionally, an applicant cannot hold an employer liable for the employer's inability to conduct a full review of the applicant's employment history.
Employer Right to Rescind Offers
Employers may rescind offers or terminate an individual's employment if the applicant's start date or offer of employment followed June 1, 2018. Additionally, employers may rescind offers or terminate employment if subsequent information regarding the applicant's history of sexual misconduct or child abuse is discovered.
Employer Duty to Provide Notice:
Employers must provide applicants with a notice of penalties on all applications for employment positions that involve regular contact with children. This notice must alert applicants that in the event an applicant willfully provides false information or willfully fails to disclose information required under the act, the applicant:
- shall be subject to discipline up to, and including, termination or denial of employment;
- may be deemed in violation of subsection a. of N.J.S.2C:28-3; and
- may be subject to a civil penalty of not more than $500 which shall be collected in proceedings in accordance with the "Penalty Enforcement Law of 1999" (See Sect. 2 Subsection b)
Employer Prohibited Practices
Employers may not enter into a collectively bargained or negotiated agreement, an employment contract, an agreement for resignation or termination, a severance agreement, or any other contract or agreement or take any action that:
- has the effect of suppressing or destroying information relating to an investigation related to a report of suspected child abuse or sexual misconduct by a current or former employee;
- affects another employer's ability to report suspected child abuse or sexual misconduct to the appropriate authorities; or
- requires the another employer to expunge information about allegations or finding of suspected child abuse or sexual misconduct from any documents maintained by the school district, charter school, nonpublic school, or contracted service provider, unless after investigation the allegations are found to be false or the alleged incident of child abuse or sexual misconduct has not been substantiated.
Posted: September 14, 2018