A4126

An Act concerning school employees and amending and supplementing P.L.2018, c.5.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 2 of P.L.2018, c.5 (C.18A:6-7.7) is amended to read as follows:

2. A school district, charter school, nonpublic school, or contracted service provider holding a contract with a school district, charter school, or nonpublic school shall not employ for pay or contract for the paid services of any person serving in a position which involves regular contact with students unless the school district, charter school, nonpublic school, or contracted service provider:

a. Requires the applicant to provide:

(1) A list, including name, address, telephone number and other relevant contact information of the applicant’s:

(a) current employer;

(b) all former employers [within the last 20 years] that were schools; and

(c) all former employers [within the last 20 years] where the applicant was employed in a position that involved direct contact with children; and

(2) A written authorization that consents to and authorizes disclosure of the information requested [under] pursuant to subsection b. of this section and the release of related records by the applicant’s employers listed [under] pursuant to paragraph (1) of this subsection, and that releases those employers from liability that may arise from the disclosure or release of records;

(3) A written statement as to whether the applicant:

(a) 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 a finding that the allegations were false or the alleged incident of child abuse or sexual misconduct was not substantiated;

(b) has ever been disciplined, discharged, nonrenewed, 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) has 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;

and

b. Conducts a review of the employment history of the applicant by contacting those employers listed by the applicant [under] pursuant to the provisions of paragraph (1) of subsection a. of this section and requesting the following information:

(1) The dates of employment of the applicant; and

(2) A statement as to whether the applicant:

(a) was 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 a finding that the allegations were false or the alleged incident of child abuse or sexual misconduct was not substantiated;

(b) was disciplined, discharged, nonrenewed, 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

The review of the employment history may be conducted through telephonic, electronic, or written communications. If the review is conducted by telephone, the results of the review shall be documented in writing by the prospective employer. The prospective employer shall maintain a record of the review of the employment history of the applicant, which shall be subject to audit by the Commissioner of Education pursuant to the section 11 of P.L. , c. (C. ) (pending before the Legislature as this bill).

(cf: P.L.2018, c.5, s.2)

2. Section 3 of P.L.2018, c.5 (C.18A:6-7.8) is amended to read as follows:

3. a. An applicant who willfully provides false information or willfully fails to disclose information required in subsection a. of section 2 of [this act] P.L.2018, c.5 (C.18A:6-7.7)

(1) shall be subject to discipline up to, and including, termination or denial of employment, as deemed appropriate by the employer and the Department of Education;

(2) may be deemed in violation of subsection a. of N.J.S.2C:28-3; and

(3) may be subject to a civil penalty of not more than [$500] $10,000 which shall be collected in proceedings in accordance with the “Penalty Enforcement Law of 1999,” P.L.1999, c.274 (C.2A:58-10 et seq.).

b. A school district, charter school, nonpublic school, or contracted service provider holding a contract with a school district, charter school, or nonpublic school shall include a notification of the penalties set forth in this section on all applications for employment for positions which involve regular contact with students.

(cf: P.L.2018, c.5, s.3)

3. Section 4 of P.L.2018, c.5 (C.18A:6-7.9) is amended to read as follows:

4. a. No later than 20 days after receiving a request for information [under] pursuant to subsection b. of section 2 of [this act] P.L.2018, c.5 (C.18A:6-7.7), an employer that has or had an employment relationship [within the last 20 years] with the applicant shall disclose the information requested, and maintain a record of the information disclosed, which shall be subject to audit by the Commissioner of Education pursuant to the section 11 of P.L. , c. (C. ) (pending before the Legislature as this bill).

b. The prospective employer, in conducting the review of the employment history of an out-of-State applicant, shall make, and document with specificity, diligent efforts to:

(1) verify the information provided by the applicant pursuant to subsection a. of section 2 of [this act] P.L.2018, c.5 (C.18A:6-7.7); and

(2) obtain from any out-of-State employers listed by the applicant the information requested pursuant to subsection b. of section 2 of [this act] P.L.2018, c.5 (C.18A:6-7.7).

c. The failure of an employer to provide the information requested pursuant to subsection b. of section 2 of [this act] P.L.2018, c.5 (C.18A:6-7.7) within the 20-day timeframe established [under] pursuant to subsection a. of this section may be grounds for the automatic disqualification of an applicant from employment with a school district, charter school, nonpublic school, or contracted service provider. A school district, charter school, nonpublic school, or contracted service provider shall not be liable for any claims brought by an applicant who is not offered employment or whose employment is terminated:

(1) because of any information received by the school district, charter school, nonpublic school, or contracted service provider from an employer pursuant to section 2 of [this act] P.L.2018, c.5 (C.18A:6-7.7); or

(2) due to the inability of the school district, charter school, nonpublic school, or contracted service provider to conduct a full review of the applicant’s employment history pursuant to subsection b. of section 2 of [this act] P.L.2018, c.5 (C.18A:6-7.7).

d. A school district, charter school, nonpublic school, or contracted service provider shall have the right to immediately terminate an individual’s employment or rescind an offer of employment if:

(1) the applicant is offered employment or commences employment with the school district, charter school, nonpublic school, or contracted service provider following the effective date of [this act] P.L.2018, c.5 (C.18A:6-7.6 et seq.); and

(2) information regarding the applicant’s history of sexual misconduct or child abuse is subsequently discovered or obtained by the employer that the employer determines disqualifies the applicant or employee from employment with the school district, charter school, nonpublic school, or contracted service provider.

The termination of employment pursuant to this subsection shall not be subject to any grievance or appeals procedures or tenure proceedings pursuant to any collectively bargained or negotiated agreement or any law, rule, or regulation.

e. A school district, charter school, nonpublic school, or contracted service provider shall notify the Department of Education if a determination is made that the applicant or employee is disqualified from employment with the school district, charter school, nonpublic school, or contracted service provider pursuant to subsection d. of this section.

(cf: P.L.2018, c.5, s.4)

4. Section 5 of P.L.2018, c.5 (C.18A:6-7.10) is amended to read as follows:

5. a. After reviewing the information disclosed [under] pursuant to subsection b. of section 2 of [this act] P.L.2018, c.5 (C.18A:6-7.7) and finding an affirmative response to any of the inquiries in paragraph (2) of subsection b. of section 2 of [this act] P.L.2018, c.5 (C.18A:6-7.7), the prospective employer, prior to determining to continue with the applicant's job application process, shall make further inquiries of the applicant's current or former employer to ascertain additional details regarding the matter disclosed. The prospective employer shall maintain a record of these inquiries, which shall be subject to audit by the Commissioner of Education pursuant to the section 11 of P.L. , c. (C. ) (pending before the Legislature as this bill).

b. A school district, charter school, nonpublic school, or contracted service provider may employ or contract with an applicant on a provisional basis for a period not to exceed 90 days pending review by the school district, charter school, nonpublic school, or contracted service provider of information received pursuant to section 2 of [this act] P.L.2018, c.5 (C.18A:6-7.7), provided that all of the following conditions are satisfied:

(1) the applicant has complied with subsection a. of section 2 of [this act] P.L.2018, c.5 (C.18A:6-7.7);

(2) the school district, charter school, nonpublic school, or contracted service provider has no knowledge or information pertaining to the applicant that the applicant is required to disclose pursuant to paragraph (3) of subsection a. of section 2 of [this act] P.L.2018, c.5 (C.18A:6-7.7); and

(3) the school district, charter school, nonpublic school, or contracted service provider determines that special or emergent circumstances exist that justify the temporary employment of the applicant.

(cf: P.L.2018, c.5, s.5)

5. Section 6 of P.L.2018, c.5 (C.18A:6-7.11) is amended to read as follows:

6. a. Information received by an employer [under this act] pursuant to P.L.2018, c.5 (C.18A:6-7.6 et seq.) or included in the database established pursuant to section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall not be deemed a public record under P.L.1963, c.73 (C.47:1A-1 et seq.) or the common law concerning access to public records.

b. An employer, school district, charter school, nonpublic school, school administrator, or contracted service provider that provides information or records about a current or former employee or applicant shall be immune from criminal and civil liability for the disclosure of the information, unless the information or records provided were knowingly false. The immunity shall be in addition to and not in limitation of any other immunity provided by law.

(cf: P.L.2018, c.5, s.6)

6. Section 8 of P.L.2018, c.5 (C.18A:6-7.13) is amended to read as follows:

8. a. The Department of Education shall establish a public awareness campaign to publicize the provisions of [this act] P.L.2018, c.5 (C.18A:6-7.6 et seq.) and to ensure applicants and employers are aware of their respective rights and responsibilities [under this act] pursuant to P.L.2018, c.5 (C.18A:6-7.6 et seq.). The department shall post on its website guidance documents and any other informational materials that may assist applicants and employers in the implementation of and compliance with [this act] P.L.2018, c.5 (C.18A:6-7.6 et seq.).

b. The [department] department’s Office of Student Protection shall develop forms for applicants and employers that [may] shall be used to comply with the requirements of subsections a. and b. of section 2 of [this act] P.L.2018, c.5 (C.18A:6-7.7), as well as any other forms necessary to carry out the provisions of [this act] P.L.2018, c.5 (C.18A:6-7.6 et seq.) and P.L. , c. (C. ) (pending before the Legislature as this bill).

(cf: P.L.2018, c.5, s.8)

7. (New section) All information received by a school district, charter school, nonpublic school, or contracted service provider from an applicant or employer pursuant to section 2 of P.L.2018, c.5 (C.18A:6-7.7) shall be submitted to the Commissioner of Education for inclusion in the school employee identification database established pursuant to section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill).

8. (New section) a. The Commissioner of Education shall create and maintain a secure and centralized school employee identification database. The purpose of the database shall be to provide school districts, charter schools, nonpublic schools, and contracted service providers with ready access to any information that may disqualify an individual from being hired by, or continuing employment with, a school district, charter school, nonpublic school, or contracted service provider. The database shall include:

(1) all information received by a school district, charter school, nonpublic school, or contracted service provider from an applicant or employer pursuant to the provisions of P.L.2018, c.5 (C.18A:6-7.7);

(2) all child abuse record information obtained by a school district, charter school, nonpublic school, or contracted service provider pursuant to section 9 of P.L. , c. (C. ) (pending before the Legislature as this bill);

(3) all information submitted to the commissioner by the State Board of Examiners pursuant to section 10 of P.L. , c. (C. ) (pending before the Legislature as this bill);

(4) all determinations to disqualify an applicant or employee from employment with a school district, charter school, nonpublic school, or contracted service provider pursuant to subsection d. of section 4 of P.L.2018, c.5 (C.18A:6-7.9); and

(5) any statement or documentation submitted by a school employee to contest, correct, or supplement any information in the school employee’s database record.

b. (1) The commissioner shall establish policies and procedures to provide secure access to the database to persons authorized by a school district, charter school, nonpublic school, or contracted service provider. Access shall be limited to the database records of employees of, or applicants to, the school district, charter school, nonpublic school, or contracted service provider.

(2) The commissioner shall establish policies and procedures to provide a school employee with secure access to the information within the employee’s database record and to contest, correct, or supplement any information in the record.

(3) The commissioner shall remove any content from the employee’s database record when there is clear and convincing evidence that the content is false.

c. The commissioner may contract with a qualified third party to create or maintain the database established pursuant to this section.

9. (New section) a. Each school district, charter school, nonpublic school, or contracted service provider shall request that the Department of Children and Families conduct a child abuse record information check of its child abuse records to determine if an incident of child abuse or neglect has been substantiated, pursuant to section 4 of P.L.1971, c.437 (C.9:6-8.11), against any applicant for a position which involves regular contact with students at the school district, charter school, nonpublic school, or contracted service provider. Requests made pursuant to this subsection shall be made prior to making an offer of employment.

b. Each applicant to a school district, charter school, nonpublic school, or contracted service provider for a position that involves regular contact with students shall provide prior written consent for the department to conduct a child abuse record information check.

c. Notwithstanding any other provision of law to the contrary, if an applicant to the school district, charter school, nonpublic school, or contracted service provider refuses to consent to, or cooperate in, the securing of a child abuse record information check pursuant to this section, the application shall be voided.

d. The department shall complete the child abuse record information check within 45 days after receiving the request for the check.

e. An individual shall not be disqualified from employment on the basis of any information disclosed by a child abuse record information check performed pursuant to this section without an opportunity to challenge the accuracy of the child abuse record.

10. (New section) a. The State Board of Examiners shall submit to the Commissioner of Education notice of any pending review that may result in the revocation or suspension of an administrative or instructional certificate.

b. The commissioner shall include information received pursuant to subsection a. of this section in the school employee identification database established pursuant to section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill).

11. (New section) a. The Commissioner of Education shall audit the records of a school district, charter school, nonpublic school, or contracted service provider holding a contract with a school district, charter school, or nonpublic school to ensure compliance with the provisions of P.L.2018, c.5 (C.18A:6-7.6 et seq.) every five years, pursuant to a schedule to be established by the commissioner.

b. In the years intervening between the five-year audit, whenever the commissioner determines that conditions exist in a school district, charter school, nonpublic school, or contracted service provider holding a contract with a school district, charter school, or nonpublic school that may pose a threat to the safety or wellbeing of students or staff of the school, the commissioner may immediately conduct an audit of the hiring practices of the school district, charter school, nonpublic school, or contracted service provider holding a contract with a school district, charter school, or nonpublic school for compliance with the provisions of P.L.2018, c.5 (C.18A:6-7.6 et seq.).

c. If the commissioner determines through an audit that the hiring practices fail to comply with the provisions of P.L.2018, c.5 (C.18A:6-7.6 et seq.), but the noncompliance does not pose an immediate threat to the safety or wellbeing of students or staff of the school, then the commissioner shall issue recommendations for compliance with the provisions of P.L.2018, c.5 (C.18A:6-7.6 et seq.) to the school district, charter school, nonpublic school, or contracted service provider holding a contract with a school district, charter school, or nonpublic school.

d. Notwithstanding section 1 of P.L.1995, c.125 (C.18A:27-4.1), or any other law, rule, or regulation to the contrary, the commissioner shall provide direct oversight of the hiring practices of a school district, charter school, or nonpublic school if the commissioner determines through an audit that the hiring practices fail to comply with the provisions of P.L.2018, c.5 (C.18A:6-7.6 et seq.), and the noncompliance is determined by the commissioner to:

(1) be the result of willful misconduct or gross negligence;

(2) pose an immediate threat to the safety or wellbeing of students or staff of the school; or

(3) constitute a failure to implement the recommendations issued by the commissioner pursuant to subsection c. of this section.

The oversight shall be provided in a manner and for a time period as determined by the commissioner. The commissioner shall provide the school district, charter school, or nonpublic school with benchmarks and remedial actions necessary for the cessation of direct oversight of hiring practices by the commissioner.

e. Nothing in this section shall preclude the commissioner from conducting a random audit of a school district, charter school, nonpublic school, or contracted service provider holding a contract with a school district, charter school, or nonpublic school to assess compliance with the provisions of P.L.2018, c.5 (C.18A:6-7.6 et seq.).

f. The commissioner may contract with a qualified third party to conduct the audits required pursuant to this section. A qualified third party shall report the findings of the audit to the commissioner.

12. (New section) a. The Department of Education shall establish procedures for the prompt investigation of an allegation of child abuse or sexual misconduct by a school employee. The procedures shall require:

(1) the board of education, board of trustees of a charter school, or chief school administrator of a nonpublic school to designate at least three employees of the school district, charter school, or nonpublic school to conduct investigations of child abuse or sexual misconduct. The department shall establish criteria for the qualifications required for a school employee to be selected as a designated employee for purposes of this paragraph;

(2) the investigation to be initiated by the designated employees within one school day of receiving reliable information regarding an allegation of child abuse or sexual misconduct by a school employee. The investigation shall be completed as soon as possible, but not later than 10 school days from the date of the receipt of information regarding the allegation;

(3) the results of the investigation to be reported to the superintendent of schools, the lead person of a charter school, or the chief school administrator of a nonpublic school within two school days of the completion of the investigation;

(4) the superintendent of schools, the lead person of a charter school, or the chief school administrator of a nonpublic school to recommend appropriate action for an investigation that substantiates the allegation of child abuse or sexual misconduct by the school employee. The superintendent of schools, the lead person of a charter school, or the chief school administrator of a nonpublic school shall issue a written statement of reasons for the recommendation. A school district, charter school, and nonpublic school shall maintain a copy of the recommendation;

(5) the recommendation to be provided to the board of education or board of trustees of a charter school that shall make a final determination in writing on the appropriate action to be taken as a result of a substantiated allegation. The final written determination shall include reasons for any final determination that is contrary to the recommendations of the superintendent of schools or the lead person of a charter school. In the case of a nonpublic school, the recommendation of the chief school administrator shall be the final determination. The final determination of a substantiated allegation shall be submitted to the commissioner for inclusion in the school employee identification database established pursuant to section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill); and

(6) any other measures that the department deems appropriate.

b. A school district, charter school, and nonpublic school shall utilize the procedures established pursuant to subsection a. of this section for an investigation regarding an allegation of child abuse or sexual misconduct by a school employee.

c. A school district, charter school, and nonpublic school shall not enter into a contract with a contracted service provider unless the provider attests that the provider utilizes comparable investigation procedures as established pursuant to subsection a. of this section.

d. (1) The department shall provide training, free of charge, to employees designated pursuant to paragraph (1) of subsection a. of this section. The department shall offer training sessions on the investigation procedures, and develop training modules in both traditional and online formats.

(2) A designated employee shall complete the training prior to conducting an investigation of an allegation of child abuse or sexual misconduct by a school employee, and annually thereafter.

e. The department shall establish guidelines to assist school districts, charter schools, and nonpublic schools in implementing the investigative procedures established pursuant to subsection a. of this section and for determining when to refer an allegation of child abuse or sexual misconduct to law enforcement.

f. A board of education, board of trustees of a charter school, or chief school administrator of a nonpublic school may enter into a memorandum of agreement with law enforcement regarding allegations of child abuse or sexual misconduct by school employees and the procedures and responsibilities of designated employees in conducting investigations.

g. Nothing in this section shall be construed to supersede the reporting requirements established pursuant to P.L.1971, c.437 (C.9:6-8.8 et. seq.) and any policies adopted for the early detection of missing and abused children required pursuant to section 2 of P.L.1984, c.228 (C.18A:36-25).

13. (New section) The Commissioner of Education shall issue a report to the Governor, and to the Legislature pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), every five years with findings and recommendations regarding the efficacy of P.L.2018, c.5 (C.18A:6-7.6 et seq.) and the provisions established pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill).

14. This act shall take effect 12 months next following the date of enactment.

STATEMENT

This bill makes changes to the current law requiring school districts, charter schools, nonpublic schools, and contracted service providers to review the employment history of certain applicants and any allegations of child abuse or sexual misconduct made against those applicants.

Current law requires the Department of Education to develop forms for applicants and employers that may be used to comply with requirements concerning the review of an applicant’s employment history. This bill requires the department’s Office of Student Protection to develop the forms and requires that the forms be used in complying with the employment history requirements.

Current law also requires applicants to positions involving regular contact with students at school districts, charter schools, nonpublic schools, and contracted service providers to provide a list of certain former employers of the applicant within the last 20 years. The bill removes the 20-year limit.

Under current law, an applicant who gives false information or willfully fails to disclose information required to be provided under the law may be subject to certain civil penalties up to $500. The bill increases the maximum civil penalty amount to $10,000.

The bill further requires the Commissioner of Education to create and maintain a secure and centralized school employee identification database. The purpose of the database is to provide school districts, charter schools, nonpublic schools, and contracted service providers with ready access to any information that may disqualify an individual from being hired by, or continuing employment with, a school district, charter school, nonpublic school, or contracted service provider. The bill requires specific categories of information to be included in the database.

The bill directs the commissioner to establish policies and procedures to provide secure access to the database. The commissioner is directed to establish policies and procedures to ensure the accuracy of the information in the database.

The bill also directs each school district, charter school, nonpublic school, or contracted service provider to request that the Department of Children and Families conduct a child abuse record information check of its child abuse records to determine if an incident of child abuse or neglect has been substantiated against any applicant to a position involving regular contact with students at the school district, charter school, nonpublic school, or contracted service provider and includes provisions pertaining to how those records are to be secured and used. The bill requires the State Board of Examiners to submit to the commissioner notice of any pending review that may result in the revocation or suspension of an administrative or instructional certificate.

This bill also requires the commissioner to audit the hiring records of a school district, charter school, nonpublic school, or contracted service provider holding a contract with a school district, charter school, or nonpublic school to ensure compliance with the provisions of law. The audit is to occur every five years, pursuant to a schedule established by the commissioner. The bill authorizes the commissioner to conduct random audits. Additionally, the bill permits the commissioner to contract with a qualified third party to conduct the audits.

Under the bill, if the commissioner determines the hiring practices do not comply with the law, but the noncompliance does not pose an immediate threat to the safety or wellbeing of students or staff of the school, then the commissioner is to issue recommendations for compliance with the law to the school district, charter school, nonpublic school, or contracted service provider holding a contract with a school district, charter school, or nonpublic school.

The commissioner is also authorized under the bill to provide direct oversight of the hiring practices of a school district, charter school, or nonpublic school if the commissioner determines through an audit that the hiring practices fail to comply with the provisions of the law, and the noncompliance is determined by the commissioner to: (1) be the result of willful misconduct or gross negligence; (2) pose an immediate threat to the safety or wellbeing of students or staff of the school; or (3) constitute a failure to implement the recommendations issued by the commissioner as a result of a previous audit.

This bill requires the department to establish procedures for the prompt investigation of allegations of child abuse or sexual misconduct by a school employee. The procedures are to require certain components as specified in the bill.

The bill requires school districts, charter schools, and nonpublic schools to utilize the procedures established by the bill for any investigation regarding an allegation by a school employee. The bill further prohibits school districts, charter schools, and nonpublic schools from entering into contracts with contracted services providers unless the provider attests that it utilizes comparable investigation procedures as established by the bill.

The department is also required to establish guidelines to assist school districts, charter schools, and nonpublic schools in implementing the investigation procedures and for determining when to refer an allegation of child abuse or sexual misconduct to law enforcement.

The bill permits a board of education, board of trustees of a charter school, or chief school administrator of a nonpublic school to enter into a memorandum of agreement with law enforcement regarding allegations of child abuse or sexual misconduct by school employees and the procedures and responsibilities of designated employees in conducting investigations.

Finally, the bill requires the commissioner to issue a report to the Governor and the Legislature every five years on implementation the law.

This bill implements certain recommendations of the New Jersey State Commission of Investigation’s March 2024 report, “Safeguarding New Jersey Students from Sexual Predators and Child Abuse at School – Examining the State’s ‘Pass the Trash’ Law.”