Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S325 Compare Versions

Only one version of the bill is available at this time.

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1	1	1 of 1
2	2	SENATE DOCKET, NO. 484 FILED ON: 1/16/2023
3	3	SENATE . . . . . . . . . . . . . . No. 325
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Patrick M. O'Connor
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act relative to the screening of prospective school employees for prior investigations into
13	13	child abuse or sexual misconduct.
14	14	_______________
15	15	PETITION OF:
16	16	NAME:DISTRICT/ADDRESS :Patrick M. O'ConnorFirst Plymouth and Norfolk 1 of 9
17	17	SENATE DOCKET, NO. 484 FILED ON: 1/16/2023
18	18	SENATE . . . . . . . . . . . . . . No. 325
19	19	By Mr. O'Connor, a petition (accompanied by bill, Senate, No. 325) of Patrick M. O'Connor for
20	20	legislation relative to the screening of prospective school employees for prior investigations into
21	21	child abuse or sexual misconduct. Education.
22	22	[SIMILAR MATTER FILED IN PREVIOUS SESSION
23	23	SEE SENATE, NO. 376 OF 2021-2022.]
24	24	The Commonwealth of Massachusetts
25	25	_______________
26	26	In the One Hundred and Ninety-Third General Court
27	27	(2023-2024)
28	28	_______________
29	29	An Act relative to the screening of prospective school employees for prior investigations into
30	30	child abuse or sexual misconduct.
31	31	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
32	32	of the same, as follows:
33	33	1 SECTION 1. Chapter 71 of the General Laws, as appearing in the 2014 Official Edition,
34	34	2is hereby amended by inserting after Section 38R the following new section:-
35	35	3 Section 38R1/2. Screening of prospective school employees for prior investigations into
36	36	4child abuse or sexual misconduct.
37	37	5 For the purposes of this section, the following definitions shall apply:-
38	38	6 “Child abuse” means the non-accidental commission of any act by a caregiver which
39	39	7causes or creates a substantial risk of physical or emotional injury or sexual abuse of a child or 2 of 9
40	40	8student; or the victimization of a child or student through sexual exploitation, regardless if the
41	41	9person responsible is a caretaker.
42	42	10 “Sexual misconduct” means any verbal, nonverbal, written, or electronic communication,
43	43	11or any other act directed toward or with a student that is designed to establish a sexual
44	44	12relationship with the student, including a sexual invitation, dating or soliciting a date, engaging
45	45	13in sexual dialogue, making sexually suggestive comments, self-disclosure or physical exposure
46	46	14of a sexual or erotic nature, and any other sexual, indecent or erotic contact with a student.
47	47	15 (A) A school district, charter school, nonpublic school, or contracted service provider
48	48	16holding a contract with a school district, charter school, or nonpublic school shall not employ for
49	49	17pay or contract for the paid services of any person serving in a position which involves regular
50	50	18contact with students unless the school district, charter school, nonpublic school, or contracted
51	51	19service provider:
52	52	20 i. Requires the applicant to provide:
53	53	21 (1) A list, including name, address, telephone number and other relevant contact
54	54	22information of the applicant’s:
55	55	23 (a.) current employer;
56	56	24 (b.) all former employers within the last 20 years that were schools; and
57	57	25 (c.) all former employers within the last 20 years where the applicant was employed in a
58	58	26position that involved direct contact with children; and
59	59	27 (2) A written authorization that consents to and authorizes disclosure of the information
60	60	28requested under subsection b. of this section and the release of related records by the applicant’s 3 of 9
61	61	29employers listed under paragraph (1) of this subsection, and that releases those employers from
62	62	30liability that may arise from the disclosure or release of records;
63	63	31 (3) A written statement as to whether the applicant:
64	64	32 (a.) has been the subject of any child abuse or sexual misconduct investigation by any
65	65	33employer, State licensing agency, law enforcement agency, or the Division of Child Protection
66	66	34and Permanency in the Department of Children and Families, unless the investigation resulted in
67	67	35a finding that the allegations were false or the alleged incident of child abuse or sexual
68	68	36misconduct was not substantiated;
69	69	37 (b.) has ever been disciplined, discharged, nonrenewed, asked to resign from
70	70	38employment, resigned from or otherwise separated from any employment while allegations of
71	71	39child abuse or sexual misconduct were pending or under investigation, or due to an adjudication
72	72	40or finding of child abuse or sexual misconduct; or
73	73	41 (c.) has ever had a license, professional license, or certificate suspended, surrendered, or
74	74	42revoked while allegations of child abuse or sexual misconduct were pending or under
75	75	43investigation, or due to an adjudication or finding of child abuse or sexual misconduct; and
76	76	44 (3) Conducts a review of the employment history of the applicant by contacting those
77	77	45employers listed by the applicant under the provisions of paragraph (1) of subsection (a) of this
78	78	46section and requesting the following information:
79	79	47 (a.) The dates of employment of the applicant; and
80	80	48 (b.) A statement as to whether the applicant: 4 of 9
81	81	49 (1) was the subject of any child abuse or sexual misconduct investigation by any
82	82	50employer, State licensing agency, law enforcement agency, or the Division of Child Protection
83	83	51and Permanency in the Department of Children and Families, unless the investigation resulted in
84	84	52a finding that the allegations were false or the alleged incident of child abuse or sexual
85	85	53misconduct was not substantiated;
86	86	54 (2) was disciplined, discharged, nonrenewed, asked to resign from employment, resigned
87	87	55from or otherwise separated from any employment while allegations of child abuse or sexual
88	88	56misconduct were pending or under investigation, or due to an adjudication or finding of child
89	89	57abuse or sexual misconduct; or
90	90	58 (3) has ever had a license, professional license, or certificate suspended, surrendered, or
91	91	59revoked while allegations of child abuse or sexual misconduct were pending or under
92	92	60investigation, or due to an adjudication or finding of child abuse or sexual misconduct.
93	93	61 The review of the employment history may be conducted through telephonic, electronic,
94	94	62or written communications. If the review is conducted by telephone, the results of the review
95	95	63shall be documented in writing by the prospective employer.
96	96	64 (B) An applicant who willfully provides false information or willfully fails to disclose
97	97	65information required in subsection (ii)(a.) of this act:
98	98	66 (1) shall be subject to discipline up to, and including, termination or denial of
99	99	67employment; and
100	100	68 (2) may be subject to a monetary fine of not more than $500 5 of 9
101	101	69 A school district, charter school, nonpublic school, or contracted service provider holding
102	102	70a contract with a school district, charter school, or nonpublic school shall include a notification
103	103	71of the penalties set forth in this section on all applications for employment for positions which
104	104	72involve regular contact with students.
105	105	73 (C) No later than 20 days after receiving a request for information under subsection (A)
106	106	74of this act, an employer that has or had an employment relationship within the last 20 years with
107	107	75the applicant shall disclose the information requested on a standardized form developed by the
108	108	76Department of Education.
109	109	77 The prospective employer, in conducting the review of the employment history of an out-
110	110	78of-State applicant, shall make, and document with specificity, diligent efforts to:
111	111	79 (1) verify the information provided by the applicant pursuant to subsection (A) of this act;
112	112	80and
113	113	81 (2) obtain from any out-of-State employers listed by the applicant the information
114	114	82requested pursuant to subsection (A) of this act.
115	115	83 The failure of an employer to provide the information requested pursuant to subsection
116	116	84(A) of this act within the 20 day timeframe may be grounds for the automatic disqualification of
117	117	85an applicant from employment with a school district, charter school, nonpublic school, or
118	118	86contracted service provider. A school district, charter school, nonpublic school, or contracted
119	119	87service provider shall not be liable for any claims brought by an applicant who is not offered
120	120	88employment or whose employment is terminated: 6 of 9
121	121	89 (1) because of any information received by the school district, charter school, nonpublic
122	122	90school, or contracted service provider from an employer pursuant to section (A) of this act; or
123	123	91 (2) due to the inability of the school district, charter school, nonpublic school, or
124	124	92contracted service provider to conduct a full review of the applicant’s employment history
125	125	93pursuant to subsection (A)(ii) of this act.
126	126	94 A school district, charter school, nonpublic school, or contracted service provider shall
127	127	95have the right to immediately terminate an individual’s employment or rescind an offer of
128	128	96employment if:
129	129	97 (1) the applicant is offered employment or commences employment with the school
130	130	98district, charter school, nonpublic school, or contracted service provider following the effective
131	131	99date of this act; and
132	132	100 (2) information regarding the applicant’s history of sexual misconduct or child abuse is
133	133	101subsequently discovered or obtained by the employer that the employer determines disqualifies
134	134	102the applicant or employee from employment with the school district, charter school, nonpublic
135	135	103school, or contracted service provider.
136	136	104 The termination of employment pursuant to this subsection may be subject to appeal.
137	137	105 (D) After reviewing the information disclosed under subsection (A) of this act and
138	138	106finding an affirmative response to any of the inquiries, the prospective employer, prior to
139	139	107determining to continue with the applicant’s job application process, shall make further inquiries
140	140	108of the applicant’s current or former employer to ascertain additional details regarding the matter
141	141	109disclosed. 7 of 9
142	142	110 A school district, charter school, nonpublic school, or contracted service provider may
143	143	111employ or contract with an applicant on a provisional basis for a period not to exceed 90 days
144	144	112pending review by the school district, charter school, nonpublic school, or contracted service
145	145	113provider of information received pursuant to subsection (A) of this act, provided that all of the
146	146	114following conditions are satisfied:
147	147	115 (1) the applicant has complied with subsection (A) of this act;
148	148	116 (2) the school district, charter school, nonpublic school, or contracted service provider
149	149	117has no knowledge or information pertaining to the applicant that the applicant is required to
150	150	118disclose pursuant to this act; and
151	151	119 (3) the school district, charter school, nonpublic school, or contracted service provider
152	152	120determines that special or emergent circumstances exist that justify the temporary employment of
153	153	121the applicant.
154	154	122 (E) Information received by an employer under this act shall not be deemed a public
155	155	123record.
156	156	124 An employer, school district, charter school, nonpublic school, school administrator, or
157	157	125contracted service provider that provides information or records about a current or former
158	158	126employee or applicant shall be immune from criminal and civil liability for the disclosure of the
159	159	127information, unless the information or records provided were knowingly false. The immunity
160	160	128shall be in addition to and not in limitation of any other immunity provided by law.
161	161	129 (F) On or after the effective date of this act, a school district, charter school, nonpublic
162	162	130school, or contracted service provider may not take any action that: 8 of 9
163	163	131 (1) has the effect of suppressing or destroying information relating to an investigation
164	164	132related to a report of suspected child abuse or sexual misconduct by a current or former
165	165	133employee;
166	166	134 (2) affects the ability of the school district, charter school, nonpublic school, or
167	167	135contracted service provider to report suspected child abuse or sexual misconduct to the
168	168	136appropriate authorities; or
169	169	137 (3) requires the school district, charter school, nonpublic school, or contracted service
170	170	138provider to expunge information about allegations or finding of suspected child abuse or sexual
171	171	139misconduct from any documents maintained by the school district, charter school, nonpublic
172	172	140school, or contracted service provider, unless after investigation the allegations are found to be
173	173	141false or the alleged incident of child abuse or sexual misconduct has not been substantiated.
174	174	142 Any provision of an employment contract or agreement for resignation or termination or
175	175	143a severance agreement that is executed, amended, or entered into after the effective date of this
176	176	144act and that is contrary to this section shall be void and unenforceable.
177	177	145 (G) The Department of Education shall establish a public awareness campaign to
178	178	146publicize the provisions of this act and to ensure applicants and employers are aware of their
179	179	147respective rights and responsibilities under this act. The department shall post on its website
180	180	148guidance documents and any other informational materials that may assist applicants and
181	181	149employers in the implementation of and compliance with this act.
182	182	150 The department shall develop forms for applicants and employers that may be used to
183	183	151comply with the requirements of subsection (A) of this act, as well as any other forms necessary
184	184	152to carry out the provisions of this act. 9 of 9
185	185	153 SECTION 2. This act shall take effect 120 days following its passage.