Summary
The recently-enacted Beau Biden Child Protection Act requires all child-serving entities, including Delaware charter schools, to obtain certain background checks for all prospective employees, as well as prospective contractors and volunteers who have regular direct access to children or provide services directly to children. Volunteers who will monitor children, or otherwise have personal contact with children, will need to obtain state and federal background checks, as well as a Child Protection Registry check. However, the background checks may not be necessary for one-time or occasional volunteers, or for contractors and volunteers in non-student areas where there is no personal contact with students. The Act will take effect on April 7, 2016.
Mandatory Background Checks for Employees, Contractors, and Volunteers
On August 11, 2015, Gov. Jack Markell signed into law the Joseph R. “Beau” Biden III Child Protection Act (the “Act”), which consolidates the background check requirements for individuals working with children in Delaware. The Act requires all child-serving entities to obtain criminal background checks for prospective employees, contractors, and volunteers who have regular direct access to children. The background checks must consist of (1) a fingerprinted Delaware background check completed by the State Bureau of Investigation (“SBI”); (2) a fingerprinted national background check completed by the Federal Bureau of Investigation (“FBI”); and (3) a Child Protection Registry check completed by the Delaware Department of Services for Children, Youth, and Their Families (“DSCYF”).
Implications for Delaware Charter Schools
The Act includes charter schools in its definition of “public schools” and thus requires charter schools to obtain background checks on all employees, contractors, and volunteers who have regular direct access to children. Individuals have “direct access” if they have an opportunity to have personal contact with children during the course of assigned duties. Therefore, parents and other volunteers who will monitor children, or otherwise have personal contact with children, will need to obtain state and federal background checks, as well as a Child Protection Registry check. On the other hand, however, the background checks may not be required for contractors and volunteers in non-student areas where there is no personal contact with students (e.g., the kitchen or back office).
Additionally, the Act requires background checks only for contractors and volunteers who have regular direct access to children. The requirement of regularity implies that the background checks may not be required for one-time or occasional volunteers (e.g., a one-time chaperone on a field trip). Nevertheless, the prudent option would be to obtain background checks for all contractors and volunteers.
Until the Act takes effect on April 7, 2016, charter schools can continue utilizing contractor and volunteer services without obtaining background checks.
Notably, the Act provides an exemption for private schools and youth camps operated by private schools who inform parents that the school is not meeting the minimum background check safety requirements for its staff members. But this private school exemption does not apply to charter schools because the Act specifically includes charter schools within the definition of “public schools.”
Determining Suitability for Employment
The Act permits child-serving entities to conditionally hire an individual pending the receipt of the background checks. After receiving the background checks, the child-serving entity must determine whether the Act prohibits employment. If the information obtained from the background checks indicates that the individual is prohibited from employment, then the employment must be terminated.
The following individuals are disqualified from working as an employee, contractor, or volunteer of a child-serving entity:
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Individuals with felony convictions involving physical or sexual assault crimes against a child, an impaired adult, or an elderly person are prohibited for life.
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Individuals with felony convictions involving physical or sexual assault crimes against another adult are prohibited for 10 years from date of conviction.
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Individuals with any other felony convictions and individuals with misdemeanor convictions against children are prohibited for 7 years from date of conviction.
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Individuals substantiated for abuse or neglect at Child Protection Level III or IV on the Child Protection Registry.
For other criminal convictions that do not prohibit employment under the Act, schools are entitled to set forth additional job-related prohibitions, provided that such prohibitions are not otherwise prohibited by law. The additional prohibitions can consider the number and types of offenses, their proximity to the proposed hiring, the individual’s criminal record since the offenses, and the responsibilities of the position which the individual is seeking to obtain. Individuals denied employment must be given the opportunity to appeal to the chief school officer or the Head of School for reconsideration.
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