HIRING PRACTICES & CRIMINAL BACKGROUND CHECKS

Transcription

1 HIRING PRACTICES & CRIMINAL BACKGROUND CHECKS A. 1. shall verify employment eligibility by examination of documents establishing identity and employment authorization and completion of the Form I-9 required by the Department of Homeland Security. 8 C.F.R. 274a.2. B. New Hire Reporting 1. By the 20th day after hiring a new employee, a report containing the name, address, and social security number of the employee, and the name, address, and employer Tex. Fam. Code ; 1 Tex. Admin. Code C. Criminal History Background Checks 1. a. Criminal History Record Information Criminal history record information is information collected about a person by a criminal justice agency that consists of arrests, detentions, indictments, and other formal criminal charges and their dispositions. Tex. Gov t Code (2). b. NCHRI is criminal history record information obtained from the Department of Tex. Educ. Code (2). c. The clearinghouse is established by DPS and is an electronic clearinghouse and subscription service that provides criminal history record information to a particular person entitled to receive such information. Tex. Gov t Code (a). 2. National Criminal History Record Information a. Teachers, Librarians, Educational Aides, Administrators, Counselors i. A person may not be employed by or serve as a teacher, librarian, educational aide, administrator, or counselor for an open-enrollment charter school unless 11

2 a review of the person s NCHRI. ii. An open-enrollment charter school must provide the agency with any information upon request by TEA to enable TEA to complete a NCHRI review. Failure of an open-enrollment charter school to provide such information is a material violation of the school s charter. Tex. Educ. Code ; Tex. Educ. Code b. Substitute Teachers i. A substitute teacher is one who is on call or on a list of approved substitutes to replace a regular teacher and who has no regular or guaranteed hours. A ii. Substitute teachers must submit to a NCHRI review. An open-enrollment charter school shall send or ensure that the person sends to DPS information required for obtaining the NCHRI. iii. In addition, the open-enrollment charter school shall obtain all criminal history record information that relates to that person through the clearinghouse and may require a person to pay any fees related to obtaining the criminal history record information. iv. The open-enrollment charter school shall provide to TEA the name of a person to whom this section applies. TEA shall obtain all criminal history record information through the clearinghouse and notify the school if the person: (1) May not be hired or must be discharged as provided by Section of the Education Code; or (2) May not be employed as a substitute teacher because the person s v. After the required information is submitted, the person may begin employment, but employment is conditional upon TEA s review of the criminal history record information. Employment must be terminated if TEA determines that the employee or applicant is ineligible for employment. Tex. Educ. Code ; 19 Tex. Admin. Code (11); 19 Tex. Admin. Code (d). c. Other Employees i. This section applies to a person who: 12

3 (1) Chapter 21 of the Education Code; (2) Does not fall under subsection (2)(a) above; and (3) open-enrollment charter school. ii. Before, or immediately after employing or securing the services to whom this section applies, an open-enrollment charter school shall send, or ensure that the person sends, to DPS the required information to obtain a NCHRI. iii. Each open-enrollment charter school shall obtain all criminal history record information that relates to a person to whom this section applies through the clearinghouse and shall subscribe to the criminal history record information of that person. The open-enrollment charter school may require a person to pay any fees related to obtaining criminal history record information under this section. iv. The open-enrollment charter school shall provide the TEA with the name of the person to whom this section applies. The TEA shall examine the criminal history record information of the person through the clearinghouse and notify the school if the person may not be hired or must be discharged as provided by. v. After the required information is submitted, the person may begin employment, but that employment is conditional upon the review of that person's criminal history record information by the TEA and must be terminated if the TEA makes a determination that the employee or applicant is ineligible for employment under the terms of Section of the Education Code. vi. open-enrollment charter schools, and shared services arrangements may coordinate as necessary to ensure that criminal history reviews are not unnecessarily duplicated. Tex. Educ. Code ; Tex. Admin. Code (d)(2). d. i. This subsection applies to a person who is offered employment by an entity that and: (1) The employee or applicant will have continuing duties related to the contracted services; and 13

4 (2) The employee or applicant has or will have direct contact with students. ii. A person to whom the law applies must submit to a NCHRI before being employed or serving in a capacity described above. The entity contracting with the charter school must send or ensure that the employee sends to DPS the information required for a NCHRI review. The entity must obtain the record from the DPS clearinghouse and certify to the charter school that the entity has received the information. These duties also apply to the entity s subcontractors. iii. An open-enrollment charter school may obtain the criminal history record information of a person to whom this section applies through the DPS clearinghouse. iv. A contracting or subcontracting entity may not permit an employee to provide services at a school if the employee has been convicted of a felony or misdemeanor offense that would prevent a person from being employed under Section (a) of the Education Code. e. i. an open-enrollment charter school shall obtain from any law enforcement, criminal justice agency, or private entity that is a consumer reporting agency governed by the Fair Credit Reporting Act, all criminal history record information that relates to that employee if: (1) The employee has continuing duties related to the contracted services; and (2) The employee has direct contact with students. ii. An open-enrollment charter school may obtain all criminal history record information that relates to such a person. iii. The entity s duties also apply to the entity s subcontractors. Tex. Educ. Code Criminal History Records a. An open-enrollment charter school shall obtain the criminal history record information of an employee who is not subject to a NCHRI. b. A school may obtain the information from: 14

5 i. DPS; Tex. Educ. Code ii. A law enforcement or criminal justice agency; or iii. A private entity that is a consumer reporting agency governed by the Fair Credit Reporting Act. c. Student Teachers & Volunteers i. An open-enrollment charter school shall obtain from DPS and may obtain from any other law enforcement, criminal justice agency, or a private entity that is a consumer reporting agency governed by the Fair Credit Reporting Act, all criminal history record information that relates to: (1) A person participating in an internship consisting of student teaching to (2) A volunteer, or a person who has indicated in writing an intention to serve as a volunteer, with the school. ii. A person under this section must provide to the open-enrollment charter school photograph issued by an entity of the United States government. iii. A person under this section may not student teach or volunteer until all iv. This section does not apply to a person who is a volunteer or is applying to volunteer with an open-enrollment charter school if the person: (1) Is the parent, guardian, or grandparent of a child who is enrolled in the same school for which the person volunteers or is applying to volunteer; (2) (3) Is volunteering for a single event on the school campus. v. An open-enrollment charter school may obtain the criminal history record information that relates to a person under this section and may require a student teacher, volunteer, or volunteer applicant to pay any costs related to obtaining the information. Tex. Educ. Code d. School Bus Drivers, Bus Monitors, and Bus Aides 15

6 i. An open-enrollment charter school that contracts with a person for transportation services shall obtain from any law enforcement or criminal justice agency all criminal history record information that relates to: (1) A person employed by the person as a bus driver; or (2) A person the person intends to employ as a bus driver. ii. A person that contracts with an open-enrollment charter school to provide transportation services shall submit to the school the name and other of each person described by subsection (i). If the school obtains information that a person described by subsection (i) has been convicted of a felony or misdemeanor involving moral turpitude the school shall inform the chief the person may not employ that individual to drive a bus on which students are transported without the permission of the governing body of the open-enrollment charter school. iii. Commercial Transportation Company (1) A commercial transportation company that contracts with an open-enrollment charter school to provide transportation services may obtain from any law enforcement or criminal justice agency all criminal history record information that relates to: Tex. Educ. Code (a) A person employed by the commercial transportation company as a bus driver, bus monitor, or bus aide; or (b) A person the commercial transportation company intends to employ as a bus driver, bus monitor, or bus aide. (2) If the commercial transportation company obtains information that a person employed, or to be employed, has been convicted of a felony or a misdemeanor involving moral turpitude, the company may not employ that person to drive or to serve as a bus monitor or bus aide on a bus on which students are transported without the permission of the governing body of the open-enrollment charter school. D. 1. Information collected on an individual to comply with the requirements to be released except: a. To comply with the law; 16

7 b. By court order; c. d. To comply with Government Code Tex. Educ. Code Criminal history record information may not be released with the exception of releasing it to: a. the individual who is the subject of the information; b. the TEA; c. SBEC; d. e. by court order. 3. Criminal history record information collected by the charter school must be destroyed or the date the information is used for the authorized purpose. 4. Any criminal history record information received by a charter school is not subject to disclosure under the Texas Public Information Act. Tex. Gov t Code E. Prohibition Against Employing Individuals Convicted of Certain Offenses (UPDATED JANUARY 2014) 1. An individual may be employed by an open-enrollment charter school if: a. The employment is in a position as a teacher or educational aide and (i) a school district could employ the person or (ii) a school district could employ the person as issued under Subchapter B, Chapter 21. b. The employment is in a position other than teacher or educational aide and a school district could employ the person. Tex. Educ. Code

8 2. An open-enrollment charter school may not allow a person who is an employee of, or applicant for employment by, an entity that contracts with the school to serve at the school if the school obtains information through a criminal history record information review concerning the employee or applicant that the individual has been convicted of an offense under the Penal Code, Title 5, 1 or is required to register as a sex offender. An open-enrollment charter school must ensure that an entity that the school contracts with for services has obtained all criminal history record information as required by the Education Code An open-enrollment charter school may discharge an employee if the school obtains information of the employee s conviction of a felony or of a misdemeanor involving moral turpitude that the employee did not disclose to SBEC or the open-enrollment charter school. 4. certify to the commissioner that the school has complied with this section. Tex. Educ. Code ; 19 Tex. Admin. Code ; 19 Tex. Admin. Code c. The director of an open-enrollment charter school shall promptly notify the SBEC in writing if the person obtains or has knowledge of information showing that an Tex. Educ. Code F. Reporting an Educator s Misconduct 1. Tex. Educ. Code (5). 2. A person who serves as the director of an open-enrollment charter school shall following circumstances: a. criminal history; b. a determination that he or she committed any of the following acts: 1 Title 5 offenses include: murder, capital murder, manslaughter, and criminally negligent homicide.

9 i. Sexually or physically abused a student or minor or engaged in any other illegal conduct with a student or minor; ii. Possessed, transferred, sold, or distributed a controlled substance; iii. Illegally transferred, appropriated, or expended school property or funds; iv. Attempted by fraudulent or unauthorized means to obtain or to alter any compensation associated with a position; v. Committed a crime, any part of such crime having occurred on school property or at a school-sponsored event; or vi. Solicited or engaged in sexual conduct or a romantic relationship with a student or minor. c. - d. That an educator engaged in conduct that violated the assessment instrument security procedures established under the Education Code, Chapter Before accepting an employee s resignation, that under this section requires a person result as a consequence. 4. A person required to comply with this paragraph shall notify the governing board of the 5. requiring the report and identifying the subject of the report by providing: name and any and home and daytime phone numbers; name(s) and contact information of any alleged victim(s); and name(s) and any available contact information of any relevant witnesses. 6. subject to sanctions. Tex. Educ. Code (b)(2)(M); Tex. Educ. Code ; 19 Tex. Admin. Code