On July 9, 2021, the Governor’s signature codified into law Assembly Bill No. 130, the Education Omnibus Budget Trailer Bill. Among many other legal changes, AB 130 replaces existing fingerprinting and background check requirements applicable to contracting entities with a new scheme, operative on January 1, 2022. Form documents and protocols for confirming and tracking fingerprint and background check compliance of contracting entities will need to be updated accordingly.
Currently, Education Code section 45125.1 requires that any entity (“Contracting Entity”) with a contract to provide pupil transportation or specific types of schoolsite-based services to a school district, county office of education, or charter school (“LEA”) must submit employee fingerprints to the Department of Justice if the entity or its employees may have contact with pupils. Background check requirements have not applied to an entity providing listed services in an emergency or exceptional situation, nor have they applied when the LEA determines that the entity or its employees will have only “limited contact” with pupils. To determine whether a Contracting Entity or its employees will have only limited contact with pupils in the course and scope of providing services, LEAs have typically considered the “totality of the circumstances,” including factors such as the length of time the Contracting Entity employee(s) will be on school grounds, whether pupils will be in proximity with the site where they will be working, and whether they will be working by themselves or with others. LEAs have had the discretion to apply fingerprinting and background check requirements to entities providing services beyond those listed in section 45125.1. The Contracting Entity is required to certify to the LEA that neither it nor its employees have been convicted of a felony as defined in Education Code Section 45122.1.
The existing law remained in effect only until January 1, 2022, and as of that date was repealed and replaced with a new set of standards.
New Legal Standards
Beginning January 1, 2022, a Contracting Entity that has a contract of any type with an LEA must ensure that any employee of the entity who interacts with pupils outside of the immediate supervision and control of the pupil’s parent or guardian or a school employee has a valid criminal records summary. When/if the Contracting Entity later performs the criminal background check for its employees, it must immediately provide to the LEA any subsequent arrest and conviction information it receives. The new standard appears to apply to any kind of contract, not just service-based contracts or those performed on school sites, if they may involve any amount of unsupervised interaction with pupils. The “limited contact” standard has been eliminated from the law, except that LEAs may still avail themselves of the pupil safety alternatives contained in Education Code section 45125.2 for contracts involving construction, reconstruction, rehabilitation or repair of a school facility where the employees of the entity will have more than limited contact with pupils; notably, construction contractors may still comply by erecting physical barriers to limit contact with pupils.
Exemptions for a Contracting Entity providing services to an LEA in an emergency or exceptional situation continue to apply, and like current law, restrictions on interaction with pupils do not apply to a Contracting Entity employee who has obtained a certificate of rehabilitation and pardon pursuant to Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code, or to an employee who can prove to the sentencing court of the offense in question, by clear and convincing evidence, that the employee has been rehabilitated for the purposes of schoolsite employment for at least one year.
The new law eliminates the practice of evaluating fingerprinting and criminal background check requirements based on the type of contract involved and whether such entities will have only limited contact with pupils, and the focus is now on unsupervised interaction. The exception for emergency or exceptional situations remains in the law, as do the additional options to ensure pupil safety on construction sites and the exemptions for rehabilitation and pardon.
By eliminating the list of specific contract types to which fingerprinting requirements apply, it appears that background check requirements will apply more broadly to any contract that may involve unsupervised interaction between the Contracting Entity and an LEA’s pupils, including those occurring off campus. When fingerprinting is not feasible, such as for off-campus school-sponsored events, activities and programs, new pupil supervision structures may be required.
School districts will need to ensure that agreements with Contracting Entities and criminal background and fingerprinting certificates comply with the new requirements of Education Code section 45125.1 starting on January 1, 2022.
DWK is able to assist school districts in updating its contracts and contract forms to capture the new fingerprinting and background check requirements. If you have any questions regarding these changes implemented by AB 130, please do not hesitate to contact a DWK attorney in our Business, Property & Construction Law practice group.