The Jessica Lunsford Act, which was passed by the Florida Legislature in 2005 in response to the abduction and killing of Jessica Lunsford, imposes new background screening requirements on contractors who perform work on Florida public school property.
The Jessica Lunsford Act, which was passed by the Florida Legislature in 2005 in response to the abduction and killing of Jessica Lunsford, imposes new background screening requirements on contractors who perform work on Florida public school property. The law requires that before contract personnel are permitted access on school grounds when students are present, or if they will have direct contact with students or have access to or control of school funds, they must have completed level 2 screening requirements as described in Fla. Stat. § 1012.32. The law requires the screening to be completed by September 1, 2005, and applies to individuals employed or contracted with any Florida public school district including traditional public schools, charter schools and alternative schools. What is Level 2 Background Screening?
The term "contract personnel" includes any vendor, individual or entity under contract with the school board. Examples: construction, vending machines/food services, office equipment services, utilities/telecommunications, maintenance, those under contract to officiate or participate in extracurricular events, class ring vendors, and photographers.
Level 2 background screening as set forth in Florida Statutes § 1012.32 requires that fingerprints be submitted to the Department of Law Enforcement (FDLE) for state processing and to the Federal Bureau of Investigation (FBI) for federal processing. It may also include a local criminal records check through local law enforcement agencies. Section 1012.32 provides that individuals subject to the background screening requirement who are found to have been convicted of a crime involving moral turpitude shall not be employed or serve in any position requiring direct contact with students. Conviction, for the purposes of this law, means the person has been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to a crime involving moral turpitude.
What are Crimes of Moral Turpitude?
According to the Florida Department of Education's (DOE) Technical Assistance Paper on the Jessica Lunsford Act, the "crimes of moral turpitude" standard is the same standard school districts have previously used for their own employees. Florida Administrative Code Rule 6B-4.009(6) provides that a crime of moral turpitude is "a crime that is evidenced by an act of baseness, vileness, or depravity in the private or social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude." This is the standard that many school districts have applied to their own employees. Thus, in effect, the law now holds all contractual employees to the same standards as the school district's own employees with regard to background screening.Who Bears the Cost of the Background Screening?
Section 1012.32 provides that the cost of the background screening may be borne by the district school board, the charter school, the employee, the contractor or a person subject to this subsection. It appears that most of the school districts are requiring the contractors to bear the cost of the background screening. The cost of a state and federal criminal history check is approximately $61, although this varies from district to district and often is higher. The annual fee for searching and reporting on arrest records is $6. Pre-payment of the fee is generally required because the fingerprints cannot be submitted to FDLE without proof of payment. Who Performs the Actual Fingerprinting of the Contract Personnel?
While the law itself does not prohibit passing the cost of the screening along to the worker, other considerations, such as the impact on morale, the ability of the worker to pay for the screening, and the possibility of a violation of federal or state minimum wage requirements if deductions are taken from worker's pay, may preclude doing so.
Additionally, most districts require payment in a certain form, either through money order or credit card, and state that no other form of payment will be accepted.
According to the DOE's Technical Assistance Paper, the school district must conduct the fingerprinting/background screening of covered individuals at a location designated by the district using the Originating Agency Identifier issued to the district by the FDLE. It is up to the district to determine what live scan device(s) will be used. What Happens if the Fingerprinting/Background Screening is not Completed by September 1?
The procedures for fingerprinting vary with the school districts; however, most districts have information about their procedures posted on their web sites.
Contractors cannot perform the background screening themselves, even if they are trained by local law enforcement agencies, because they would not be able to access the FBI and FDLE files required by the level 2 screening.
Some districts have indicated they will not strictly enforce the September 1, 2005, deadline, as long as the contractor has verified that its workers are not on the state or federal sexual predator lists. Others, however, have indicated that they will be conducting spot checks after September 1 to determine if a contract worker has passed the background screening and, if not, the contractor may face termination of the contract. It is important for contractors to review the information contained on the specific district's web site or contact the district directly to ensure the proper procedures are followed. Is There a Central Clearinghouse for Fingerprints/Background Checks?
No. Although districts are permitted to enter into agreements to share fingerprints, if the districts in which the contractor will be working do not have such an agreement, the contractor must be fingerprinted in each of the districts in which work will be performed. Again, the contractor should review the relevant district's requirements. Who Determines Whether an Individual has Successfully Passed the Screening?
The school district has the authority to determine whether any individual has been convicted of a crime of moral turpitude. The districts will notify contractors of any individuals not approved to work on school grounds, although the reason may not be disclosed because of confidentiality requirements.
This Alert provides a general summary of the requirements of the Jessica Lunsford Act. Contractors affected by the background screening requirement should consult the school districts with whom they have contracts to determine the district's specific procedures.
If you have any questions regarding the new law or labor or employment issues in general, please contact the Ford & Harrison attorney with whom you usually work.