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A Pennsylvania court order that stopped school districts outside Pittsburgh from conducting background checks of all applicants and employees on school roofing projects while the legality of the checks could be decided has been overturned by a Pennsylvania appellate court.
A union representing Pennsylvania roofing workers, the United Union of Roofers, Waterproofers, and Allied Workers, filed a lawsuit in the Allegheny County, Pa., Court of Common Pleas to prevent county school districts from running background checks on members before using them on school projects. The union challenged the school districts' application and enforcement of the Pennsylvania Public School Code of 1949, which was amended in 2007. The school code requires school districts to run criminal background checks on all current and prospective employees of public and private schools, intermediate units, and area vocational technical schools, including teachers, substitutes, janitors, cafeteria workers, independent contractors and their employees, except those who have no direct contact with children.
[SHRM members-only HR Q&A: Are there federal and/or state laws prohibiting employers from asking applicants about arrests and convictions?]
The union claimed that its members were exempt from criminal background checks because they do not have direct contact with children. The union also claimed that rejecting its members as applicants for school roofing projects based on a criminal background check violated the Pennsylvania Criminal History Record Information Act and their constitutional due process rights. The union sought a declaratory judgment in favor of its members and a preliminary injunction to bar background checks of construction workers during the pendency of the lawsuit.
The lower court granted the union a preliminary injunction, finding that the school code requires that criminal background checks on school workers be limited to those with direct contact with children. The injunction required that the school districts show a causal connection between any criminal offenses and the position for which the employees applied to justify an exclusion.
On appeal to the Pennsylvania Commonwealth Court, however, the school districts argued that the union had not met the strict requirements for obtaining a preliminary injunction, including the requirement that a preliminary injunction can only maintain the status quo that existed before the lawsuit.
The school districts argued that, in 2011, the school code had been amended to change the disqualification periods based on convictions for certain offenses. The school districts presented testimony from a human resource professional at a county high school that, since 2011, the school used the disqualification periods set by law to review the criminal histories of all applicants for work at the high school. Based on that review, the HR professional would tell the project managers of the roofing contractors whether the applicant was approved or denied.
Based on this evidence, the appellate court found that the trial court's injunction had disturbed the status quo. It found that, since at least 2011, the school districts had conducted background checks on employees of independent contractors without first deciding whether those employees would have direct contact with children. Thus, by granting a preliminary injunction requiring the school districts to show a causal connection between a criminal offense and the position at issue to justify an exclusion before rejecting an applicant, the trial court was imposing a new status quo that would revise the school districts' long-standing background check practices.
United Union of Roofers, Waterproofers, and Allied Workers, Local Union No. 37 v. North Allegheny Sch. Dist., Comm. Ct. of Pa., No. 2392 C.D. 2015, 2477 C.D. 2015, 2493 C.D. 2015 (April 18, 2017).
Professional Pointer: Laws governing background checks are in flux due to efforts by unions and employee advocates to expand the opportunities available to applicants with criminal records. Many laws still require criminal background checks, however, for jobs in close proximity with vulnerable groups such as children, individuals with disabilities and the elderly. HR professionals must know and carefully apply the rules governing criminal background checks to ensure their employer's ongoing compliance with the law.
Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.
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