Public Schools and Education counsel Susan S. Hodges' latest alert discusses the new law known as "Pass the Trash."
With great fanfare, Governor Murphy recently signed what is popularly known as the “Pass the Trash” law, which is aimed at increasing protections for school children from abuse and sexual misconduct. The new law, effective June 1, 2018, requires school districts to review the employment history of all new applicants to determine whether they have any past allegations or instances of child abuse or sexual misconduct against students.
“Pass the Trash” requires that job applicants provide the school district with a list that includes the applicant’s current employer, all former school employers within the past 20 years, and all former employers within the past 20 years where the applicant was in a position which had direct contact with children. (This last category is not limited to schools, but would also include employers as diverse as daycares, pediatric medical offices, youth gymnastic/sports facilities, children’s art programs, and recreation programs.)
The law provides that a district may “not employ for pay or contract for the paid services of any person serving in a position which involves regular contact with students.” Thus, a district has to make these inquiries for any potential employee (including substitutes who are directly employed by the district) and for outside contractors (such as individuals contracted to provide occupational or therapy services).
Applicants are also required to provide the hiring district with written authorization that permits the disclosure of that information, along with a release from any liability that may arise from the disclosure or release of such records. In addition, applicants are required to provide a written statement regarding whether they:
(a) were the subject of any child abuse or sexual misconduct investigation by any employer, state licensing agency, law enforcement agency, or the Department of Children Protection and Permanency, unless the investigation resulted in a finding that the allegations were false or not substantiated;
(b) were disciplined, discharged, not renewed, asked to resign from employment, resigned from or otherwise separated from any employment while allegations of child abuse or sexual misconduct were pending or under investigation, or due to an adjudication or finding of child abuse or sexual misconduct; or
(c) have ever had a license, professional license, or certificate suspended, surrendered, or revoked while allegations of child abuse or sexual misconduct were pending or under investigation, or due to an adjudication or finding of child abuse or sexual misconduct.
The school district is then required to contact all of the current and former employers and request confirmation of the information provided by the applicant. The Department of Education is expected to post guidance documents and forms on its website to assist both applicants and school districts with the implementation of and compliance with the law; however, as of this date, that information is not yet available.
This employment history must be considered prior to the school district making any hiring decision regarding applicants for positions that have regular contact with students.
An applicant may be automatically disqualified for employment if a former employer fails to provide the requested information within 20 days of receiving a request. There is no exception in the law for applicants whose former employers (except for out-of-state employers) fail, even through no fault of the applicants, to respond to the requests.
There is a “provisional” period which allows districts to hire applicants for up to 90 days pending the confirmations, but only in “special or emergent circumstances”. However, there is no explicit guidance as to what exactly is to happen to those provisional employees on Day 91.
The law also prohibits school districts from entering into confidential agreements that would have the effect of suppressing any information related to investigations or findings of sexual misconduct or child abuse by an employee.
To be sure, the requirements of this new law will be time consuming for school districts. For example, if an applicant lists any other districts as a former employer, such as an applicant who worked for multiple districts as a substitute teacher, the hiring district is obligated to contact each and every one of those multiple districts, no matter how many, to request the required information.
Furthermore, the law creates potential litigation and exposure to liability for districts. It would behoove school districts and their personnel departments to sit down with their legal counsel to discuss the full ramifications and obligations imposed by Pass the Trash.
For more information and guidance on this topic, please contact the attorneys in Parker McCay’s Public Schools and Education Department.
The content of this post is for informational purposes only and should not be construed as legal advice or legal opinion. You should consult a lawyer concerning your specific situation and any specific legal question you may have.