Background Checks: Don’t Forget Employees of Third-Party Contractors

With limited exceptions, school officials must obtain a criminal history and records check for employees of third-party contractors who are assigned to “regularly and continuously” work on school property. Revised School Code (RSC) Sections 1230 and 1230a provide that when an individual is assigned to regularly and continuously work under contract at a school, officials shall request a criminal history check from the criminal records division of the department of state police and a criminal records check through the Federal Bureau of Investigation.

Sections 1230 and 1230a’s requirements apply to third-party employees who “[r]egularly and continuously work under contract." The following statutory language defines that term:

(i) To work at school on a more than intermittent or sporadic basis as an owner or employee of an entity that has a contract with a [school] to provide food, custodial, transporta­tion, counseling, or administrative services, or to provide instructional services to pupils or related and auxiliary services to special education pupils.

(ii) To work at school on a more than intermittent or sporadic basis as an individual under a contract with a [school] to provide food, custodial, transportation, counseling, or admin­istrative services, or to provide instructional services to pupils or related and auxiliary services to special education pupils.

Contracted related service providers for students with IEPs are likely subject to the statutory criminal history and record check requirements.

If the school board determines that the contractor’s employee needs to start working before the criminal history report is available, the person can be assigned conditionally if:

1. The school requests the criminal history check before the contracted individual begins working at a school; and
2. The individual signs a statement identifying all crimes of which they have been convicted and affirming that if the criminal history check is not the same as the statement, the contract is voidable at the school board’s discretion.

The RSC requires schools to use an MDE model form for the disclosure statement.

Exceptions to the Requirement to Obtain a Criminal History Check

If an individual is contracted to work regularly and continuously for more than one school and has agreed in writing to share the criminal history and records reports with other schools, school officials may rely on a copy of the reports obtained by the first school and do not have to request new ones.

Another variation of this rule applies to contracted individuals who are enrolled general education students 19 years old or younger and enrolled special education students 26 years old or younger. In these situations, school officials must still run a criminal history check using the state police’s internet criminal history access tool (ICHAT). If the ICHAT search reveals a conviction, school officials must take steps to verify the information using public records.

School officials need not obtain another criminal history check so long as the individual assigned to regularly and continuously work under contract remains at the same school or transfers to any other school while working for the same third-party contractor. The individual cannot have been separated from service at the first school. This transfer provision is also valid between different schools. If the following two requirements are not met, the new school must request a criminal history check:

1. The new school must request that the previous school forward the results of the criminal history report, and the previous school must provide the report; and
2. Upon receipt of the criminal history report, the new school must perform a criminal history check using the state police’s ICHAT based on the name, sex, and date of birth that were associated with the report obtained from the previous school.

The RSC does not allow schools to rely on a criminal history check performed by any other type of employer, including a state or nonpublic institution of higher education.

If a school receives a report under Section 1230 or 1230a that an individual has been convicted of a listed offense, the school must take steps to verify that information using public records. “Listed offenses” can be found in Section 2 of the Sex Offenders Registration Act. Examples of listed offenses include engaging in prostitution, accosting, enticing, or soliciting a child for immoral purposes, and kidnapping a minor. If the information is verified, the school shall not employ the individual in any capacity and shall not allow the individual to regularly and continuously work under contract in any of its schools. If a school receives a report under Section 1230 or 1230a that an individual has been convicted of a felony other than a listed offense, the school shall take steps to verify the information using public records, and if verified, shall not employ the individual in any capacity or allow the individual to regularly or continuously work under contract unless the superintendent and board of education specifically approve the employment or work assignment in writing. In this situation, a board must approve the work at a board meeting, and the action must be included in the board meeting minutes.

A service agreement with a non-school entity that will assign employees to regularly and continuously work on a campus should state that the school will obtain a criminal history check on assigned individuals and identify who will assume the cost.

We recommend that school officials refer to school policies to ensure that statutory requirements for criminal background checks are met and reach out to a Thrun attorney with any questions.