Employment Law Update: Employees Having Direct Contact with Children

Prior to December 31, 2014, prospective employees of child-care service providers, day cares and the like were required to complete a three-part criminal background investigation and thereafter, based on those reports, be cleared by the employer before beginning employment.

Beginning December 31, 2014 however, the number of individuals that this requirement applies to has been expanded to cover a prospective employee who is “14 years of age or older applying for a paid position as an employee responsible for the welfare of a child or having direct contact with children.”  Particularly given the last category (employees that have “direct contact with children”), the number of individuals covered under this law has radically expanded.  Additionally, the age requirement is also significant – the new statute even affects an employer’s hiring practices for summer help.

For newly covered individuals, background checks must be obtained from the Pennsylvania State Police, the Pennsylvania Department of Human Services, and the Federal Bureau of Investigation.  It is up to the employee to obtain these clearances and submit them to the employer.  After the employee has obtained its clearance and submitted them to the employer, the employer must thereafter maintain copies of all the required information and must be able to require the individual to produce the original documents prior to employment.

A covered prospective employer must review the applicant’s three reports as part of the hiring decision.  There are certain automatic disqualifications, generally they are as follows:

  • Anyone convicted of a long list of enumerated state crimes primarily related to violence or sex offenses (or their federal crime counterparts);
  • Anyone who is a subject of a “founded report” on the State register of sexual offenders for an event in the prior five years; and
  • Any conviction for a felony offence under the controlled substance laws during the prior five years.

A summary of how an employee may obtain the relevant background checks is as follows:

Pennsylvania State Police Request for Criminal Record Check.

The criminal record check through the Pennsylvania State Police can be obtained by way of the submission of what is known as State Police Form SP 4-164.  The form itself is fairly self-explanatory.  Alternatively, the record can be obtained by going on the State’s “epatch” website.  No finger printing is necessary in this process.

Pennsylvania Department of Human Services

The Department of Human Services clearance can be obtained by using the “Pennsylvania Child Abuse History Clearance Form” or by going on-line on the Department’s website.

Either way, the applicant should be prepared to produce a great deal of information in the form of previous names used, addresses lived at and household members lived with (in each case since 1975).  It is important to be complete.  We have seen one instance where a gap in this information for a period in the late 70’s has led to a request form being rejected.

Federal Bureau of Investigation

The Federal Bureau of Investigation clearance is the most involved.  It is a multi-step process.  The first step requires the individual to register on the “cogent” website, the web address of which is as follows:


After registration is completed, the applicant must have his fingerprints printed.  Prints can be made at any of a variety of places, which are listed, on a county-by-county basis, on that website.  Reports are then returned to the prospective applicant, who in turn would share the results with the employer.

Obtaining these reports obviously takes some time.  As a result there is a statutory “provisional hiring period” during which an employee may work if he or she meets the following requirements:

  • The employee has made all three applications to the appropriate agencies and has given the employer a copy of the applications;
  • The employer has no relevant, detrimental information regarding the applicant;
  • The employee swears or affirms in writing that no disqualifying events have occurred;
  • The employee does not work alone with children and is always in the vicinity of a permanent employee.

Obviously, any employer contemplating the “provisional hiring period” route would have to seriously consider the fourth point and whether it is feasible for the particular situation.

Apart from the laudable goals behind these requirements, it is important for the employer (and any responsible person in the employer’s business) to keep in mind the criminal penalties for non-compliance under the statute:  “An employer, administrator, supervisor or other person responsible for employment decisions that intentionally fails to require an applicant to submit the required documentation before the applicant’s hiring commits a misdemeanor of the third degree.”

Additionally, a business enterprise that involves direct contact with children could take on enormous civil liability if a background check is not undertaken and that background check would have revealed that an employee who later hurts someone was actually disqualified from employment in the first place.

– Rod Fluck


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