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Recent changes to the Pennsylvania Public School Code tightened the state’s qualifications for school bus drivers by expanding the list of disqualifying offenses and by making those convictions a lifetime ban as opposed to a short term (five year) restriction on working as a school bus driver. This article explains the changes and gives some practical advice about the Decem-ber 27, 2011 self-reporting deadline and dealing with affected drivers.

List of Disqualifying Crimes Expanded and Lifetime Ban Implemented

24 P.S. § 1-111 is the Pennsylvania statute that requires criminal back-ground checks of certain employees of independent school bus contractors. The statute applies to “…all prospective employees of … public and private schools … , including independent contractors and their employees, except those employees and independent contractors and their employees who have no direct contact with children.” 24 P.S. § 1-111(a.1). Section (a.1)(e) of the statute contains a list of over 20 specific crimes against people and minors. Previously, anyone convicted of one of the listed crimes in the last five years was disqualified from employment as a school bus driver. The changes to 24 P.S. § 1-111(a.1)(e) that went into effect on September 28, 2011 updated the list of crimes and eliminated the five year time period creating a lifetime ban from employment as a school bus driver for anyone who was ever convicted of one of the listed crimes. In addition, a ten year ban now applies to all felony convictions of the first, second, and third degree. A five year ban now applies to anyone convicted of a misdemeanor of the first degree. A three year ban now applies to any-one convicted more than once of an offense involving driving under the influence of alcohol or a con-trolled substance.

Arrest/Conviction Report and Certification form required by December 27, 2011

In order to identify any currently employed school bus drivers who are no longer qualified under the new law, the Pennsylvania Department of Education is requiring all school bus drivers (and others who work directly with children) to complete form PDE-6004 certifying that they have never been arrested or convicted of a “Reportable Offense” as defined in 24 P.S. § 1-111(a.1)(e). Anyone who fails to complete the form by December 27, 2011, is subject to criminal penalties and the new law allows the school administrator to order a current criminal back-ground check for that employee at the expense of the employer. This new self-reporting requirement is on-going. School bus drivers who are arrested or convicted after the effective date of the new statute, September 28, 2011, are required to report same within 72 hours to the school administrator using form PDE-6004.

Practical Advice and Recommendations

It is important to note that while the statute requires the reporting of convictions and arrests, only convictions are disqualifying events under the statue. Employment termination or refusal to hire due to an arrest alone could be actionable by the affected employee under a variety of local ordinances, state and federal statues, and common law. This means you must carefully consider and evaluate each situation on a case by case basis and move carefully and deliberatively. While a conviction for one of the crimes enumerated in 24 P.S. § 1-111(a.1)(e) could be valid grounds for termination or refusal to hire, an adverse employment action based on a conviction not listed in the new statue could be a violation of Pennsylvania statue 18 Pa.C.S. § 9125, et seq. making the employer responsible for damages, fines, and attorney's fees of the employee who was adversely affected.

Beware of the “rush to judgment” by school administrators or others who become aware of an arrest record. As you know, anyone accused of a crime is innocent until proven guilty and only convictions are cause for action under the statute. Records of negotiated dispositions of criminal accusations should also be handled carefully. In most cases, an employee could successfully argue that a negotiated disposition (pleading “guilty” or “no contest”) is not a conviction. The Equal Employment Opportunity Commission (EEOC) has issued Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982). See, EEOC Notice 915.061 9/7/90. Therein, the EEOC directed that an employer’s using arrest or conviction records as an absolute bar to employment disproportionately excludes certain racial groups. Most importantly, it is the employer, not the school administrator, who will bear the cost of improper employment action.

The most important points are that (1) all school bus drivers and employees who have direct contact with children are required to com-plete the PDE-6004 form and provide it to school administrators by December 27, 2011, (2) all school bus drivers and employees who have direct contact with children have an on-going obligation to formally report criminal conduct, including DUI citations (which are arguably “arrests”), to school administrators within 72 hours, and (3) employers should be careful and deliberative in responding to arrest or conviction records in order to avoid liability for failure to com-ply with the new statute and/or liability for improper employment practices if adverse employment action is taken.

Guidance, forms, and a list of Re-portable offenses are available from the Pennsylvania Department of Education website at:
http://www.portal.state.pa.us/portal/server.pt/community/background_checks_(act_114)/7493


Thanks to the suggestion of PSBA member, Shawn McGlinchey of Krapf Bus Companies, next month’s article will feature the issues surrounding the downgrade of CDL for failure to submit medical certification on time. New penalties for holders of commercial driver’s licenses (CDLs) operating in interstate commerce who fail to timely comply with the medical certification requirements of 49 CFR 391, 383, et seq go into effect on January 30, 2012. After that date, the penalty for failure to file the form 649-F Medical Examination Report every 24 months will include having the delinquent driver’s CDL status downgraded or removed. Pennsylvania legislation addressing this federal requirement is evolving and a more detailed update will follow soon. In the meantime, be sure to keep records that show each driver’s compliance with the CDL medical certification requirements. More details in the December issue of PSBA newsletter to follow.

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