School Hiring Procedures Legislation – On the Governor’s Desk
On Monday, February 26, the New Jersey Senate gave its final, unanimous approval to S-414 (Pennacchio/Ruiz, Webber/Downey) the so-called “Pass the Trash” legislation. The Assembly unanimously passed the bill on February 2. The bill now moves to Governor Murphy for review. Governor Murphy can veto, modify through a conditional veto, or sign this legislation. If signed, the bill will go into effect on the first day of the second month following signing, thus impacting the procedures principals and district personnel must follow as they hire new school staff this spring.
The legislation aims at protecting students from child abuse or sexual misconduct through a new, detailed screening process aimed at closing existing loopholes and legal barriers to the sharing of information about prospective school employee candidates. Specifically, the bill requires public, charter, nonpublic schools and contracted service providers utilized by school districts to perform a detailed investigation of all applicants’ prior employment history, over the past twenty years, where a candidate had direct contact with children.
The hiring process set forth in the bill includes the following requirements for applicants;
- Potential job applicants must provide a list of the name, address, telephone numbers and contact information for all prior employers that were school and employers where the applicant had direct contact with children;
- All job applicants must provide a written authorization that consents to the disclosure of specific information and records, from past and current employers over the past 20 years, concerning all past findings of child abuse, sexual misconduct or ongoing investigations of such allegations;
- The applicants’ written consent authorization, to be developed by the NJ Department of Education and signed by the applicant, must release all listed employers from liability that may arise from the disclosure or release of records; and
- The applicant must complete a written statement as to whether the applicant has been the subject of any child abuse or sexual misconduct investigation by any employer, State licensing agency, Law enforcement agency, or the Department of Children and Families, UNLESS the investigation resulted in finding that the allegations were FALSE or NOT SUBSTANTIATED.
- The applicant must also provide a written statement detailing whether he/she has ever been disciplined, discharged, non-renewed, asked to resign from employment, resigned from or otherwise was separated from employment while allegations of child abuse or sexual misconduct were pending, under investigation or due to an adjudication or finding of child abuse or sexual misconduct; and
- The applicant must provide a written statement detailing whether he/she has ever had a license, professional license, or certificate suspended, surrendered or revoked while such allegations were pending or due to an adjudication or finding of child abuse or neglect as defined in the bill.
The school district, charter school, contracted provider and nonpublic school must follow these requirements before hiring a candidate:
- The potential Employer must conduct a review of the applicant’s employment history and contact all relevant employers listed by the applicant to request information about the applicant’s employment dates and prior history on issues of child abuse and sexual misconduct as set forth above;
- The employment history review may be conducted through telephonic, electronic, or written communications. All telephone reviews must be documented in writing by the prospective employer;
- The current or prior employer has 20 days to provide the requested information to the hiring employer, who shall consider this information confidential and NOT a public record under law;
- The prospective employer, in conducting employment reviews of out-of-state applicants, must “document with specificity, its diligent efforts” to verify the applicant’s submitted information and obtain the requested information;
- In the event, the prospective employer does not receive the requested information from any employer on the applicant’s list, the prospective employer may automatically disqualify the applicant from further consideration without fear of liability;
- In the event of an affirmative response to any of the circumstances set forth in the bill, the prospective employer must make further inquiries of the applicant’s current or former employers to ascertain the details regarding the matter disclosed; and
- The prospective employer may hire an applicant on a provisional basis, for a period not to exceed 90 days, pending review by the employer of the application and employment history if the applicant has submitted all requested information, the prospective employer has no knowledge or information that would disqualify the applicant under the provisions of this legislation and special or emergent circumstances exist that justify the temporary employment of the applicant.
Immunity, Penalties, Employer Authority and NJDOE Role
The bill clearly provides immunity from liability to all employers engaged in the hiring process under the provisions of the legislation. Hiring employers are immune from any claims by applicants for following the bill’s provisions. Prior or current employers are free from civil and criminal liability for providing information or records about an applicant UNLESS the information presented was “knowingly false.”
Hiring employers must notify applicants that if they “willfully provide false information or willfully fail to disclose information required by this legislation, they shall be subject to discipline up to and including denial of employment or termination; that they may be subject to a civil penalty of not more than $500.00 and may be deemed in violation of a provision of the criminal code (N.J.S. 2C:28-3(a).
The hiring employer is specifically given the right to immediately terminate an individual’s employment or rescind an offer of employment if information is subsequently discovered or obtained that disqualifies the applicant from employment under the provisions of this legislation. This termination is not subject to any grievance or appeals procedures or tenure proceedings under law or contract.
Once this legislation goes into effect, a school district, charter, nonpublic or contracted service provider cannot enter into any form of agreement, including settlement agreements or collective bargaining agreements that would effectively suppress or destroy information relating to an investigation of suspected child abuse or sexual misconduct, that affects the ability of the employer to report suspected child abuse or sexual misconduct to appropriate authorities or that would require the employer to expunge information about allegations or findings of suspect abuse or sexual misconduct.
The Department of Education is required to establish a public awareness campaign to publicize the provisions of this legislation, to develop and post guidance to implement the law on its website and to develop forms for applicants and employers to use during the hiring process.
Effective Date Could Impact Spring Hiring in Schools
This legislation will take effect on the first day of the second month following enactment. The timing of the Governor’s action on the bill will determine how quickly the law will go into effect. AS noted, the Governor can modify the bill’s provisions, including the effective date through the conditional veto process.
NJPSA supported the goals of this legislation to keep students safe, but proposed amendments during the legislative process. Due to the significant impact this legislation will have on the hiring process, NJPSA will inform you immediately of the Governor’s action on the legislation.
Superintendent Salary Cap Legislation
The Senate also approved S-692 (Ruiz) legislation that prohibits the NJDOE from regulating the maximum salary amount a district may pay its superintendent of schools. Pursuant to administrative code passed by the Christie Administration, the Executive County Superintendent was given the authority to review and approve all employment contracts for superintendents with a maximum salary being set depending on student enrollment. Although changes have been made to the maximum salary amounts in recent code changes, this legislation eliminates the NJDOE’s authority to establish such salary caps in the future. NJPSA supports the bill which now moves to the Assembly for consideration.
The Senate passed S-847 (Turner/Diegnan) by a vote of 39 to 1. The bill provides that beginning in the 2019-2020 school year, public schools with students in grades kindergarten through grade five, must provide a recess period each day. A student can only be denied recess for a violation of the district’s code of conduct, including HIB violations. Wherever possible, districts should avoid denying a student recess and not more than twice per week. Recess is not required on a school day where the school day is substantially shortened due to a delayed opening or early dismissal. NJPSA was able to achieve important amendments to the original legislation during the legislation process.
Pension Investments Restrictions
The Senate unanimously approved legislation prohibiting investment of pension and annuity funds by the State in entities that avoid their Superfund obligations to the State of New Jersey.