PA State Clearances

NEW BACKGROUND CLEARANCE LAW

 

SPORTS TEAM EMPLOYEES & VOLUNTEERS

 

Please be sure to consult your legal counsel when making determinations and/or interpretations. You should also discuss with your insurers possible insurance coverage implications.

 

SUMMARY OF PA ACT 15 of 2015 (Amending ACT 153 of 2014)

Act 15 of 2015 is a new Pennsylvania law that became effective on July 1, 2015 and amends Act 153 of 2014.  The new law requires comprehensive criminal and child abuse background checks for employees and volunteers who have “direct contact with children”.  Of special important is Section 6344.2 of the Act which amends the Child Protective Services Law to expand the definition of persons who must submit to a detailed state background check to include any adult applying for an unpaid position responsible for the welfare of a child or having direct contact or routine interaction with children. This is a summary of the requirements of Act 15 and what our employees, volunteers and administrators must do to meet them. 

 

Who does the Act Apply to?  

• Employees - Section 6344 applies to any individual 14 years and older who “is applying for or holding a paid position as an employee with a program, activity or service” or is a “person responsible for a child’s welfare or having direct contact with children”.  This includes “independent contractors”, such as referees and in-game officials (“Employees”).  Act 15 has also amended Section 6344 to apply to “minors”, which are defined as “any individual between 14 and 17 years of age who applies for or holds a paid position as an Employee”.
• Volunteers - Section 6344.2 applies to any “adult applying for or holding an unpaid position as a volunteer “with a school or program, activity or service or a person responsible for a child’s welfare or having direct volunteer contact with children”.  This includes all coaches, managers, locker room monitors and volunteers who work with children on our sports teams (“Volunteers”).  Act 15 has added definitions of “Program, activity or service” which includes “any sports or athletic program” and “Direct volunteer contact” which means “the care, supervision, guidance or control of children and routine interaction with children” and “Routine interaction” which means “Regular, repeated and continual contact that is integral to a person’s employment or volunteer responsibilities.” The Act also applies to “Non-resident volunteers” who are out-of-state persons who can serve for up to 30 days per calendar before providing certifications.  
• Administrators - The Act also applies to persons who make decisions about who will serve as an Employee or Volunteer, including, “employers, administrators, supervisors or other persons responsible for selection of volunteers” who are required to ensure that an applicant submits to all requirements set forth below under Section 6344(b) below (“Administrators”).  

 

What do our Employees, Volunteers & Administrators have to do to comply with the Law? 

Act 15 changed the word “clearance” to “certification” and requires all Employees & Volunteers to obtain 3 state clearances consisting of: a Child Abuse certification; Criminal History Record certification and Federal Criminal History certification.  Administrators are required to check that their employees & volunteers have complied with obtaining the certifications before allowing them to have contact with children. 

 

How does a Volunteer or Employee obtain the Clearances?

A Volunteer or Employee must submit an application for certification under Section 6344(b) either on-line or by written document to the following government agencies: the Pa Dept. of Human Services, the Pennsylvania State Police, and the Federal Bureau of Investigation as follows:

The required background check clearances include:

1.    Criminal History Record Information obtained from the Pennsylvania State Police ($10 fee)

2.    Child Abuse Clearance obtained through the Pennsylvania Department of Human Services certifying the applicant is not named in the statewide database “as the alleged perpetrator in a pending child abuse investigation or as the perpetrator of a founded report or indicated report” of child abuse.” ($10 fee)

3.    Federal Criminal History Record Information obtained by submitting a full set of fingerprints to Cogent Systems for submission to the Federal Bureau of Investigation. ($27.50 fee)

Exemption from FBI Certification Requirements (for Volunteers & minor Employees): Section 6344.2 (B.1) of Act 15 permits a Volunteer to be exempted from the federal background check if prior to taking the position, the Volunteer certifies in a notarized affidavit that his position is unpaid and that he has been a resident of Pennsylvania “during the entirety of the previous 10-year period” – or “produces a certification at any time since establishing residency in PA” and “swears or affirms in writing” that he is not disqualified due to any child abuse offense or been convicted of any crime in another state or foreign nation, similar to the convictions disqualifying a person in Pennsylvania.  A paid minor can have his parent or natural guardian sign a similar affidavit to be exempted from the FBI certificate.  Employees are not exempt for the FBI certification.  (See; Form Affidavit attached)

 

When must an Employee or Volunteer Obtain the Certifications?

Act 15 has extended the time for obtaining certifications and for renewing them.  The rules are a little complicated and the Act should be consulted, but the following general rules apply:    

• Volunteers – A current Volunteer who was approved for service before August 25, 2015 but who doesn’t have certifications because they were not previously required, has until July 1, 2016 to obtain the certifications.  A NEW volunteer (not approved for service before August 25, 2015) must obtain the certifications before beginning service as of August 25, 2015.  
• Employees – A current Employee must obtain certifications by December 31, 2015 if: (1) he was not previously required  to obtain certifications or if (2) his current certifications are more than 5 years old; or (3) if current his certifications did not include Child Abuse & FBI certifications.  A new Employee must obtain all certifications prior to employment.  
• Recertification – All Employees and Volunteers must be recertified every 5 years.

 

What results disqualify an Employee or Volunteer?  

 

An Employee or Volunteer will be disqualified from serving if:

1. The applicant is “named in the statewide database maintained by the Department of Human Services as the perpetrator of a founded child abuse report committed within the five-year period immediately preceding verification”.
2. The applicant has been convicted of “one or more of the following offenses under Title 18 (relating to crimes and offenses) or an equivalent crime under Federal law or the law of another state”:
   • ​​Chapter 25 (criminal homicide)
   • Section 2702 (aggravated assault)
   • Section 2709.1 (stalking)
   • Section 2901 (kidnapping)
   • Section 2902 (unlawful restraint)
   • Section 2910 (luring a child into a motor vehicle or structure)
   • Section 3121 (rape)
   • Section 3122.1 (statutory sexual assult)
   • Section 3124.1 (sexual assault)
   • Section 3124.2 (institutional sexual assault)
   • Section 3125 (aggravated indecent assault)
   • Section 3126 (indecent assault)
   • Section 3127 (indecent exposure)
   • Section 3129 (sexual intercourse with animal)
   • Section 4302 (incest)
   • Section 4303 (concealing death of child)
   • Section 4304 (endangering welfare of children)
   • Section 3123 (involuntary deviate sexual intercourse)
   • Section 4305 (dealing in infant children)
   • Section 5902(b) (prostitution and related offenses)
   • Section 5903(c) or (d) (obscene and other sexual materials and performances)
   • Section 6301 (corruption of minors)
   • Section 6312 (sexual abuse of children)
   • Section 6318 (unlawful contact with minor)
   • Section 6319 (solicitation of minors to traffic drugs)
   • Section 6320 (sexual exploitation of children)
   • The attempt, solicitation, or conspiracy to commit any of the offenses set forth in this paragraph
3. The applicant has been convicted of a felony drug offense under the act of April 14, 1972 (P.L. 233, No. 64), knonw as "The Contolled Substance, Drug, Device, and Cosmetic Act," committed within the five-year period immediate preceding verification

 

What are the duties of a Volunteer who is charged with a new disqualifying offense?

If an Employee under 6344 or a Volunteer under to 6344.2 is arrested for or convicted of an offense that would constitute grounds for denying employment or participation in a program, activity or service under the Act, or is named as a perpetrator in a founded or indicated report, the Employee or Volunteer shall provide the Administrator or designee with written notice not later than 72 hours after the arrest, conviction or notification that the person has been listed as a perpetrator in the Statewide database.  

 

What are the Duties of an Administrator who selects an Employee or Volunteer?

The Administrator responsible for hiring an Employee or who accepts the Volunteer’s services in a program, activity or service must: (1) obtain the original clearances prior to the individual beginning employment or volunteer service; (2) maintain copies of the required information; and (3) immediately require the Employee or Volunteer to submit current information if it is reasonably suspected that the Employee or Volunteer has committed an offense during employment or service.  The cost of the required certification shall be borne by the employing entity or program, activity or service.

 

What are the Penalties for an Employee, Volunteer or Administrator who willfully fails to Comply with the Act? 

An Employee, Volunteer or Administrator who willfully fails to disclose information required by the Act commits a misdemeanor of the third degree and shall be subject to discipline up to and including termination or denial of employment or volunteer position.  

 

This Summary of Act 153 does not address all provisions of the Law and is not intended as an exhaustive discussion of the full Act.  Any questions or comments concerning this Summary should be directed to its author, David A. Baun, Esquire at dbaun@baunlittlaw.com.   Rev. 7/22/15

 

Please be sure to consult your legal counsel when making determinations and/or interpretations. You should also discuss with your insurers possible insurance coverage implications.

Additional information below provided by David A. Baun and posted with his permission:

The law requires persons who have direct and routine contact with children to undergo the state background checks.  A returning volunteer – meaning one who was approved, appointed or retained to serve in that capacity prior to August 25th – has until July 1, 2016 to provide certifications.  Any new volunteer – meaning one appointed or retained after August 25th must provide the certifications before beginning service. 

The term “approved for service” was used to differentiate volunteers from employees.  The legislature wanted to distinguish between volunteers who aren’t compensated, like most scholastic coaches, from persons who are paid for their services, like referees.   Many times, we say “we hired a new varsity team coach” – whether the coach is actually being paid or not.  To avoid confusing volunteers with employees by using the word “hire” when referring to both volunteers and employees, the legislature chose to use the words “employ” or “hire” when it referred to employees and “approved” or “retained” for service when referring to volunteers.  This was important because different rules apply to volunteers and employs; like volunteers being exempt from the FBI fingerprinting and having until July 1, 2016 and employees, not being eligible for the exemption and needing to provide their certifications by December 31, 2015.

Generally speaking, coaches who are returning from last season have until July 1, 2016 because they were approved for service before the law took effect on December 31, 2014 and therefore, were not required to provide the certifications at the time they were first approved or selected to serve.  Act 15, which amended the original version of the law called Act 153, extended the cut-off from July 1, 2015 to August 25, 2015. 

Lastly, while all coaches must provide certifications (because they clearly have direct and routine contact with children) I would be surprised if club board members’ contact is direct and routine enough to require them to provide certifications.  The law specifically excludes administrators who don’t actually have direct and repeated contact with the players from the certification requirement.