Improving School Employment History Reviews Under Faith’s Law

By Maureen Anichini Lemon

In August 2021, Governor Pritzker signed “Faith’s Law,” which was designed to protect children from sexual abuse. The General Assembly recently expanded on Faith’s Law via P.A. 102-0702. This Act provides a comprehensive action plan to further the goals contained in Faith’s Law by increasing notice requirements related to sexual misconduct by school employees and by augmenting school employment history review processes. The Faith’s Law expansion makes many changes that will go into effect on July 1, 2023. However, two of the most notable ones are discussed below:

Notice Concerning Sexual Misconduct

Section 10-21.9 of the Illinois School Code (105 ILCS 5/10-21.9) addresses the fingerprint-based criminal history records checks required of all school employment applicants. Currently, Section 10-21.9(e-5) requires each school superintendent to notify the State Superintendent of Education and the applicable regional superintendent of schools of any license holder who is dismissed or resigns if the school superintendent reasonably believes that the license holder has committed an intentional act of abuse or neglect against a child.

Under the new law, this notice must also be given whenever the school superintendent has reasonable cause to believe that the former employee engaged in “sexual misconduct” as defined in Section 22-85.5 of the School Code. 105 ILCS 5/22-85.5. Such “sexual misconduct” includes, but is not limited to, any verbal, nonverbal, written, or electronic communication or physical activity, directed toward or with a student to establish a romantic or sexual relationship with the student (e.g., a sexual or romantic invitation, dating or soliciting a date, engaging in sexualized or romantic dialog, a sexual, indecent, romantic or erotic contact with the student, etc.).

Employment History Review

The new amendments also installs Section 22-94 of the School Code, which requires a heightened review of the employment history of temporary or permanent employees or contracted employees. 105 ILCS 5/22-94.

Initially, the Illinois State Board of Education must develop an employment history template for use by schools and school contractors. Using this template, each school or school contractor will verify that applicants are not disqualified from working directly with students or children by eliciting information from the applicant and then confirming that information with ISBE as well as with the applicant’s past employers.

Each school / school contractor applicant must provide (1) contact information for their current and past employers where they have had direct contact with children; (2) a written authorization allowing the current and former employers to release certain employment records; and (3) a release of such employers from any liability that may arise from such disclosure.

The applicant is expected to complete a written statement answering whether they have ever (1) been the subject of a sexual misconduct allegation; (2) been dismissed, resigned, asked to resign, non-renewed, or been disciplined by an employer due to sexual misconduct; or (3) had a license or certificate suspended, surrendered or revoked, or had an application for licensure, approval or endorsement denied because of sexual misconduct. The applicant does not have to provide any of this information about an allegation about which there has been a finding that the allegation was false, unfounded, or unsubstantiated. However, an applicant who provides false information or willfully fails to disclose required information shall be subject to discipline and/or denial of employment.

A school may not hire an applicant for a position involving direct contact with children/students if the applicant does not provide the information required. A school must also verify, for those applicants who are licensed by ISBE, the applicant’s reported previous employers in ISBE’s educator licensure database to ensure accuracy.

Additionally, the school / contractor shall use the ISBE template to request from each employer listed by the applicant (1) the dates of their employment, and (2) a statement mirroring the information required to be disclosed by the applicant. Again, this information is not required if there has been a finding that the allegation was false, unfounded, or unsubstantiated. The template will give former employers the option to state that it has no knowledge of information that would disqualify the applicant.

If the former employer does have information responsive to the request, it shall disclose that information within twenty days after receiving the request from the prospective school / school contractor employer. The information should come from the human resources or central office of the former employer. In addition to completing the template, the former employer must provide additional information about the matters disclosed and all related records. The law expressly exempts such information from Freedom of Information Act requests.

Upon receipt of information from a former employer, a school or contractor may use the information to evaluate an applicant’s fitness to be hired or for continued employment. They may also report the information, if appropriate, to ISBE, the State licensing agency, law enforcement agency, DCFS, another school or contractor, or a prospective employer.

Notably, any employer, school, school administrator or contractor who provides information or records about current or former employees or applicants under this new law is immune from criminal and civil liability, unless the information or records provided were knowingly false.

Conclusion

When it goes into effect on July 1, 2023, the requirements of P.A. 102-0702 will apply to new employment applicants but not to then-current employees. Once ISBE finalizes its template, schools will need to train their Human Resources staff to use the template and elicit the necessary information. Staff will also need to complete the template for current employees upon their separation from employment and update the information as necessary prior to releasing it upon request from another school district. If you have questions on how to prepare for these future operational obligations, please contact an Ottosen DiNolfo Hasenbalg & Castaldo, Ltd. attorney.