E-Alerts

Breaking News: Governor Of Massachusetts Has Signed Amendments To The Massachusetts Background Checks Law, Including The Fingerprinting Requirements

[September 6, 2013]  On September 3rd, Massachusetts Governor Patrick signed into law certain amendments to the background checks law that was enacted in January, 2013.  The law requires public and private schools in Massachusetts to obtain fingerprint-based criminal background checks for certain individuals, including current and prospective employees who may have direct and unmonitored contact with children.

The amendments, which are effective immediately, implement significant changes to the law.  For example, unlike the law signed into effect in January 2013, the amendments permit, but do not require, schools to obtain criminal offender record information and fingerprint-based background checks for subcontractors and laborers, commissioned by the school to perform work on school grounds, who may have direct and unmonitored contact with children.

Pursuant to the amended law, schools are still required to obtain both criminal offender record information and fingerprint-based background checks for any individual who regularly provides school-related transportation to children.

In addition, the amended law permits, but does not require, schools to obtain fingerprint-based background checks for volunteers who may have direct and unmonitored contact with children.  However, schools are still required to obtain criminal offender record information for such volunteers.

With respect to implementation of the new law, the amendments provide that “[u]ntil the commonwealth has fully implemented a system for forwarding fingerprints to the Federal Bureau of Investigation for a national criminal history check and providing the results of those checks to school employers, school employers may hire individuals without first obtaining the results of a state and national fingerprint-based criminal history check if the school employer has obtained from the Massachusetts department of criminal justice information services all available criminal offender record information on such individuals.”

Once a system has been fully implemented for forwarding fingerprints to the Federal Bureau of Investigation for a national criminal history check and providing the results of those checks to schools, the amended law requires schools to “require employees hired for the 2013-2014 school year or thereafter without the results of a state and national fingerprint-based criminal history check to submit fingerprints for a state and national criminal history check within a reasonable period of time.”  Current employees whose employment began before the 2013-2014 school year will be required to submit fingerprints for state and national criminal history checks on a phased-in basis prior to the beginning of the 2016-2017 school year.

In the future, after the fingerprinting system has been fully implemented, schools will be able to hire individuals without first obtaining the results of national and fingerprint-based criminal history check only “in limited circumstances.”  Regulations will be promulgated addressing the limited circumstances under which a school may hire such a “conditional employee.”

The amended law also imposes new requirements on the Department of Early Education and Care (“EEC”) for institutions currently licensed with the EEC or seeking to become licensed.  In sum, the EEC will soon require Sex Offender Registry Information (“SORI”) checks and fingerprint-based national and state criminal history database checks, in addition to Criminal Offender Record Information (“CORI”) and Department of Children and Families (“DCF”) background record checks.  Thus, individuals who are currently required by the EEC to undergo a CORI and DCF background record check will also be required to undergo a SORI and a fingerprint check.  Notably, the EEC anticipates that the vendor sites throughout the Commonwealth for taking and processing fingerprints will be operational by late October, 2013.

Please be assured that we will continue to monitor developments regarding implementation of the fingerprinting system in the Commonwealth, and we will provide updates as they become available.  In the meantime, if you have any questions about background check requirements applicable to your institution, please do not hesitate to contact any member of the Firm’s education practice group.