Pupil safety is one of the precepts of operating a public or private school. One method to safeguard pupils is to ensure contractors that may have contact with pupils have undergone a criminal background check through the Department of Justice. The contractor submits its employees' fingerprints to the DOJ as set forth in the Education Code. Sections 33192 and 33193 of the Education Code establish the fingerprinting and criminal background clearance guidelines for private schools while sections 45125.1 and 45125.2 govern those for public schools.
Independent Contractors (Non-Construction)
Third party contractors providing one of five specific services must submit their employees' fingerprints to the DOJ prior to commencing those services. These five services are:
- School and classroom janitorial;
- Schoolsite administrative;
- Schoolsite grounds and landscape maintenance;
- Pupil transportation; or
- Schoolsite food-related.
Schools should also consider requiring contractors to have their employees submit fingerprints to the DOJ if the contractor's employees may come into contact with pupils. This could include employees performing architectural, social networking, and vending machine services, among others.
Contractors subject to these requirements must certify in writing to the school that its employees who may come into contact with pupils have not been convicted of a felony. The DOJ will notify the school if any contractor's employee has been convicted of a felony or has a pending felony proceeding. Contractors cannot permit any employees to come into contact with pupils until the DOJ has cleared them.
Contractors do not need to submit employee fingerprints to the DOJ if the school determines the contractor's employees will have only limited contact with pupils. This exception applies even if the contractor is performing one of the listed services that require DOJ clearance. In making this determination, schools should consider the totality of circumstances, such as how long the contractor will be on campus, how close the contractor's work is to pupils, and if the contractor is working alone or with others. If the school determines fingerprinting is not required, as the contractor will only have limited contact with pupils, the school must still take steps to protect the safety of pupils that may come into contact with these individuals. Schools may also bypass the fingerprinting requirements in emergency or exceptions situations, such as when contractors are making repairs to make school facilities safe and habitable.
If a contractor is subject to fingerprinting, the school should include a provision in the contract that the contractor agrees to comply with the statutory requirements related to submitting employee fingerprints to the DOJ and undergoing criminal background checks. The contract should clarify that the contractor will not permit any employee to have contact with pupils until they have received the appropriate clearance.
Private schools and school districts construction or repair contractors do not need to require construction contractors to comply with the fingerprinting requirement. The school must, however, ensure the safety of its pupils by instituting one of the following protections:
- Install a physical barrier at the worksite to limit contact with pupils;
- Continual supervision and monitoring of the contractor's employees by another employee previously cleared by the DOJ; or
- Surveillance of the contractor's employees by school personnel.
Schools should insert a provision in the construction contract stating that the contractor and its employees are not to have more than limited contact with the school's pupils and will supervise and monitor its employees, if necessary. If the contractor cannot provide one of these protections, and the construction contractor will have more than limited contact with pupils, schools should require that contractor to submit its employees' fingerprints to the DOJ.
Pupil safety is a top priority of both private and public schools. Schools should ensure they appropriately protect students from third party contractors by requiring contractors that will be in contact with pupils to obtain clearance from the DOJ before performing their services.