New Jersey-2022-A4480-Introduced

An Act concerning requirements for State employment in certain positions that involve children and supplementing chapter 14 of Title 52 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. As used in this act:

"Child" means any person under the age of 18 years.

"Child abuse" means any conduct that falls under the purview and reporting requirements of P.L.1971, c.437 (C.9:6-8.8 et seq.) and is directed toward or against a child, regardless of the age of the child.

"Sexual misconduct" means any verbal, nonverbal, written, or electronic communication, or any other act directed toward or with a child that is designed to establish a sexual relationship with the child, including a sexual invitation, dating or soliciting a date, engaging in sexual dialogue, making sexually suggestive comments, self-disclosure or physical exposure of a sexual or erotic nature, and any other sexual, indecent or erotic contact with child.

"Service provider" means an entity holding a contract with a State employer to provide services involving children.

"State employer" means any of the principal departments in the Executive Branch of this State, and any board, bureau, office, division, authority, or other instrumentality thereof.

2. A State employer or service provider shall not employ for pay or contract for paid services any person serving in a position which involves regular contact with children, unless the State employer or service provider complies with the provisions of this section.

a. The State employer or service provider shall require each applicant for employment to provide:

(1) a list, including the name, address, telephone number, and other relevant contact information of the applicant's:

(a) current employer;

(b) all former employers within the last 20 years;

(c) employment positions involving direct contact with children from those listed in subparagraphs (a) and (b) of this paragraph;

(2) a written authorization that consents to and authorizes disclosure of the information requested under subsection b. of this section and the release of related records by the applicant's employers listed under paragraph (1) of this subsection, and that releases those employers from liability that may arise from the disclosure or release of records; and

(3) a written statement as to whether the applicant:

(a) has been the subject of any child abuse or sexual misconduct investigation by any employer, State licensing agency, law enforcement agency, or the Department of Children and Families, and whether the investigation resulted in a finding that the allegations were false or the alleged incident of child abuse or sexual misconduct was not substantiated;

(b) has ever been disciplined, discharged, nonrenewed, asked to resign from employment, resigned from or otherwise separated from any employment while allegations of child abuse or sexual misconduct were pending or under investigation, or due to an adjudication or finding of child abuse or sexual misconduct; or

(c) has ever had a license, professional license, or certificate suspended, surrendered, or revoked while allegations of child abuse or sexual misconduct were pending or under investigation, or due to an adjudication or finding of child abuse or sexual misconduct.

b. The State employer or service provider shall conduct a review of the employment history of the applicant by contacting those employers listed by the applicant under the provisions of paragraph (1) of subsection a. of this section and requesting the following information:

(1) the dates of employment of the applicant; and

(2) a statement as to whether the applicant:

(a) was the subject of any child abuse or sexual misconduct investigation by any employer, State licensing agency, law enforcement agency, or the Department of Children and Families, and whether the investigation resulted in a finding that the allegations were false or the alleged incident of child abuse or sexual misconduct was not substantiated;

(b) was disciplined, discharged, nonrenewed, asked to resign from employment, resigned from or otherwise separated from any employment while allegations of child abuse or sexual misconduct were pending or under investigation, or due to an adjudication or finding of child abuse or sexual misconduct; or

The review of the employment history may be conducted by telephone, electronic, or written communications. If the review is conducted by telephone, the results of the review shall be documented in writing by the prospective employer.

3. a. An applicant who willfully provides false information or willfully fails to disclose information required in subsection a. of section 2 of this act P.L. , c. (C. ) (pending before the Legislature as this bill):

(1) shall be subject to discipline up to, and including, termination or denial of employment;

(2) may be deemed in violation of subsection a. of N.J.S.2C:28-3; and

(3) may be subject to a civil penalty of not more than $500 which shall be collected in proceedings in accordance with the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).

b. A State employer or service provider shall include a notification of the penalties set forth in this section on all applications for employment for positions which involve regular contact with children.

4. a. No later than 20 days after receiving a request for information under subsection b. of section 2 of this act P.L., c. (C. ) (pending before the Legislature as this bill), an employer that has or had an employment relationship within the last 20 years with the applicant shall disclose the information requested.

b. The State employer or service provider, in conducting the review of the employment history of an out-of-State applicant, shall make, and document with specificity, diligent efforts to:

(1) verify the information provided by the applicant pursuant to subsection a. of section 2 of this act P.L., c. (C. ) (pending before the Legislature as this bill); and

(2) obtain from any out-of-State employers listed by the applicant the information requested pursuant to subsection b. of section 2 of this act P.L., c. (C. ) (pending before the Legislature as this bill).

c. The failure of an employer to provide the information requested pursuant to subsection b. of section 2 of this act P.L., c. (C. ) (pending before the Legislature as this bill) within the 20-day timeframe established under subsection a. of this section may be grounds for the automatic disqualification of an applicant from employment with a State employer or service provider. A State employer or service provider shall not be liable for any claims brought by an applicant who is not offered employment or whose employment is terminated:

(1) because of any information received by the State employer or service provider from an employer pursuant to section 2 of this act P.L., c. (C. ) (pending before the Legislature as this bill); or

(2) due to the inability of the State employer or service provider to conduct a full review of the applicant's employment history pursuant to subsection b. of section 2 of this act P.L., c. (C. ) (pending before the Legislature as this bill).

d. A State employer or service provider shall have the right to immediately terminate an individual's employment or rescind an offer of employment if:

(1) the applicant is offered employment or commences employment with the State employer or service provider following the effective date of this act, P.L. , c. (C. ) (pending before the Legislature as this bill); and

(2) information regarding the applicant's history of sexual misconduct or child abuse is subsequently discovered or obtained by the State employer or service provider that the employer or provider determines disqualifies the applicant or employee from employment.

The termination of employment pursuant to this subsection shall not be subject to any grievance or appeals procedures or tenure proceedings pursuant to any collectively bargained or negotiated agreement or any law, rule, or regulation.

5. a. After reviewing the information disclosed under subsection b. of section 2 of this act, P.L. , c. (C. ) (pending before the Legislature as this bill) and finding an affirmative response to any of the inquiries in paragraph (2) of subsection b. of section 2 of this act, P.L. , c. (C. ) (pending before the Legislature as this bill), the prospective State employer or service provider, prior to determining to continue with the applicant's job application process, shall make further inquiries of the applicant's current or former employer to ascertain additional details regarding the matter disclosed.

b. A State employer or service provider may employ or contract with an applicant on a provisional basis for a period not to exceed 90 days pending review by the State employer or service provider of information received pursuant to section 2 of this act, P.L. , c. (C. ) (pending before the Legislature as this bill), provided that all of the following conditions are satisfied:

(1) the applicant has complied with subsection a. of section 2 of this act, P.L. , c. (C. ) (pending before the Legislature as this bill);

(2) the State employer or service provider has no knowledge or information pertaining to the applicant that the applicant is required to disclose pursuant to paragraph (3) of subsection a. of section 2 of this act, P.L. , c. (C. ) (pending before the Legislature as this bill); and

(3) the State employer or service provider determines that special or emergent circumstances exist that justify the temporary employment of the applicant.

6. a. Information received by a State employer or service provider under this act, P.L. , c. (C. ) (pending before the Legislature as this bill) shall not be deemed a public record under P.L.1963, c.73 (C.47:1A-1 et seq.) or the common law concerning access to public records.

b. An employer that provides information or records about a current or former employee or applicant shall be immune from criminal and civil liability for the disclosure of the information, unless the information or records provided were knowingly false. The immunity shall be in addition to and not in limitation of any other immunity provided by law.

7. a. On or after the effective date of this act, P.L. , c. (C. ) (pending before the Legislature as this bill), a State employer or service provider shall not enter into a collectively bargained or negotiated agreement, an employment contract, an agreement for resignation or termination, a severance agreement, or any other contract or agreement or take any action that:

(1) has the effect of suppressing or destroying information relating to an investigation related to a report of suspected child abuse or sexual misconduct by a current or former employee;

(2) affects the ability of the State employer or service provider to report suspected child abuse or sexual misconduct to the appropriate authorities; or

(3) requires the State employer or service provider to expunge information about allegations or finding of suspected child abuse or sexual misconduct from any documents maintained by the State employer or service provider, unless after investigation the allegations are found to be false or the alleged incident of child abuse or sexual misconduct has not been substantiated.

b. Any provision of an employment contract or agreement for resignation or termination or a severance agreement that is executed, amended, or entered into after the effective date of this act and that is contrary to this section shall be void and unenforceable.

8. In addition to the requirements concerning an application for employment established under sections 2 through 7 of this act, P.L. , c. (C. through C. ) (pending before the Legislature as this bill), an applicant for employment who will be employed in a position which involves regular contact with children, and each current employee of a State employer or service provider who is employed in a position which involves regular contact with children, shall be required to undergo a criminal history record background check as a condition of prospective or continuing employment. The State employer or service provider is authorized to exchange fingerprint data with, and to receive criminal history record information from, the Division of State Police in the Department of Law and Public Safety and the Federal Bureau of Investigation. Except as provided in subsection d. of this section, a current employee of a State employer or service provider, or an applicant for employment, who is or will be employed in a position which involves regular contact with children, shall be permanently disqualified from employment in that position if the criminal history record background check of that employee or applicant reveals a record of conviction for any of the following crimes and offenses:

a. in New Jersey, any crime or disorderly persons offense as follows:

(1) a crime against a child, including endangering the welfare of a child and child pornography pursuant to N.J.S.2C:24-4; child molestation as set forth in N.J.S.2C:14-1 et seq.;

(2) abuse, abandonment or neglect of a child pursuant to R.S.9:6-3;

(3) endangering the welfare of a person with a developmental disability pursuant to N.J.S.2C:24-7.1;

(4) sexual assault, criminal sexual contact or lewdness pursuant to N.J.S.2C:14-2 through N.J.S.2C:14-4;

(5) murder pursuant to N.J.S.2C:11-3 or manslaughter pursuant to N.J.S.2C:11-4;

(6) stalking pursuant to section 1 of P.L.1992, c.209 (C.2C:12-10);

(7) kidnaping and related offenses including criminal restraint, false imprisonment, interference with custody, criminal coercion, or enticing a child into a motor vehicle, structure or isolated area pursuant to N.J.S.2C:13-1 through N.J.S.2C:13-5 and section 1 of P.L.1993, c.291 (C.2C:13-6);

(8) arson pursuant to N.J.S.2C:17-1, or causing or risking widespread injury or damage, which would constitute a crime of the second degree pursuant to N.J.S.2C:17-2;

(9) aggravated assault, which would constitute a crime of the second or third degree pursuant to subsection b. of N.J.S.2C:12-1;

(10) robbery, which would constitute a crime of the first degree pursuant to N.J.S.2C:15-1;

(11) burglary, which would constitute a crime of the second degree pursuant to N.J.S.2C:18-2;

(12) domestic violence pursuant to P.L.1991, c.261 (C.2C:25-17 et seq.);

(13) terroristic threats pursuant to N.J.S.2C:12-3; or

(14) an attempt or conspiracy to commit any of the crimes or offenses listed in paragraphs (1) through (13) of this subsection.

b. In any other state or jurisdiction, of conduct which, if committed in New Jersey, would constitute any of the crimes or disorderly persons offenses described in subsection a. of this section.

c. If the applicant or employee is disqualified, the convictions that constitute the basis for the disqualification shall be identified in a written notice to the applicant or employee. The applicant or employee shall have 14 days from the date of the written notice of disqualification to challenge the accuracy of the criminal history record information. If no challenge is filed or if the determination of the accuracy of the criminal history record information upholds the disqualification, the State employer or service provider shall notify the applicant or employee of the disqualification from employment. An individual shall not be disqualified from employment under this act, P.L. , c. (C. ) (pending before the Legislature as this bill), on the basis of any conviction disclosed by a criminal history record background check performed pursuant to this act without an opportunity to challenge the accuracy of the disqualifying criminal history record.

d. If an employee is convicted of a crime specified in subsection a. of this section, the employee shall be terminated from employment, except that the State employer or service provider may approve the individual's employment if all of the following conditions are met:

(1) the State employer or service provider determines that the crime does not relate adversely to the position the individual is employed in pursuant to the provisions of P.L.1968, c.282 (C.2A:168A-1 et seq.);

(2) the conviction is not related to a crime committed against a child, as specified in subsection a. of this section;

(3) the State employer or service provider documents that the individual's employment does not create a risk to the safety or well-being of children due to the nature and requirements of the position; as necessary, the State employer or service provider shall identify restrictions regarding the individual's contact with, care, or supervision of children;

(4) the State employer or service provider documents that the individual is uniquely qualified for the position due to specific skills, qualifications, characteristics, or prior employment experiences; and

(5) the State employer or service provider determines that the individual has affirmatively demonstrated rehabilitation, pursuant to the factors specified in subsection b. of section 9 of this act, P.L. , c. (C. ) (pending before the Legislature as this bill).

9. a. For crimes and offenses other than those cited in subsection a. of section 8 of this act, P.L. , c. (C. ) (pending before the Legislature as this bill), an employee or applicant may be eligible for employment if the individual has affirmatively demonstrated to the State employer or service provider clear and convincing evidence of rehabilitation pursuant to subsection b. of this section.

b. In determining whether an individual has affirmatively demonstrated rehabilitation, the following factors shall be considered:

(1) the nature and responsibility of the position that the convicted individual would hold, has held or currently holds, as the case may be;

(2) the nature and seriousness of the offense;

(3) the circumstances under which the offense occurred;

(4) the date of the offense;

(5) the age of the individual when the offense was committed;

(6) whether the offense was an isolated or repeated incident;

(7) any social conditions that may have contributed to the offense; and

(8) any evidence of rehabilitation, including good conduct in prison or in the community, counseling or psychiatric treatment received, acquisition of additional academic or vocational schooling, successful participation in correctional work-release programs, or the recommendation of those who have had the individual under their supervision.

c. The State employer or service provider shall make the final determination regarding the employment of a person with a criminal conviction specified under this section.

d. If a State employer or service provider has knowledge that an employee has criminal charges pending against the employee, the State employer or service provider shall determine whether or not any action concerning the employee is necessary in order to ensure the safety of the children.

10. a. A State employer or service provider that has received an employment application from a prospective employee, or with respect to a current employee, shall be immune from liability for acting upon or disclosing information about the disqualification or termination of that applicant or employee to another employer seeking to employ that individual if the State employer or service provider has:

(1) determined that person is disqualified from employment pursuant to this act, P.L. , c. (C. ) (pending before the Legislature as this bill); or

(2) terminated the employment of an employee who was disqualified from employment on the basis of a conviction of a crime pursuant to section 8 of this act, P.L. , c. (C. ) (pending before the Legislature as this bill), after commencing employment.

b. A State employer or service provider that acts upon or discloses information pursuant to subsection a. of this section shall be presumed to be acting in good faith unless it is shown by clear and convincing evidence that the State employer or service provider acted with actual malice toward the individual who is the subject of the information.

11. In addition to the requirements concerning an application for employment established under sections 2 through 7 of this act, P.L. , c. (C. through C. ) (pending before the Legislature as this bill), and the requirements concerning a criminal history record background check and disqualification from employment established under section 8 through 10 of this act, P.L. , c. (C. through C. ) (pending before the Legislature as this bill), an applicant for employment, and a current employee of a State employer or service provider, who will be or is employed in a position which involves regular contact with children, shall be required to undergo a child abuse record information check as provided in this section.

a. A State employer or service provider shall conduct a child abuse record information check for each prospective or current employee to determine if an incident of child abuse or neglect has been substantiated, pursuant to section 4 of P.L.1971, c.437 (C.9:6-8.11), against the prospective or current employee.

b. Each current or prospective employee shall provide prior written consent for the conduct of a child abuse record information check.

c. If a current or prospective employee refuses to consent to, or cooperate in, the conduct of a child abuse record information check, the individual shall be ineligible for or immediately terminated from employment.

d. The division shall complete the child abuse record information check within 45 days after receiving the request for the check.

e. A current employee of a State employer or service provider, or an applicant for employment, who is or will be employed in a position which involves regular contact with children, shall be permanently disqualified from employment in that position if the child abuse record information check of that employee or applicant reveals a record of conviction for child abuse.

12. The State employer or service provider shall be responsible for the cost of processing and funding all criminal history record background checks and child abuse record information checks required pursuant to this act, P.L. , c. (C. ) (pending before the Legislature as this bill). The State employer or service provider shall also be responsible for paying the cost of obtaining the fingerprints or other identifier authorized by the Division of State Police, unless that service is available at no cost to the employee or individual seeking employment.

13. a. Each State employer or service provider subject to the provisions of this act, P.L. , c. (C. ) (pending before the Legislature as this bill), shall establish a public awareness campaign to publicize the provisions of this act and to ensure applicants and employers are aware of their respective rights and responsibilities under this act. The State employer or service provider shall post on its website guidance documents and any other informational materials that may assist applicants and employers in the implementation of and compliance with this act.

b. The State employer shall develop forms for applicants and employers that may be used to comply with the requirements of subsections a. and b. of section 2 of this act, as well as any other forms necessary to carry out the provisions of this act.

14. This act shall take effect immediately.

STATEMENT

This bill requires State employers, or service providers holding a contract with a State employer to provide services involving children, to ascertain allegations of child abuse or sexual misconduct prior to awarding employment in certain positions that involve regular contact with children. The bill also requires a criminal history record background check and a child abuse record background check for each current or prospective employee of a State employer or service provider who is or would be employed in a position having regular contact with children. Under the bill, a State employer means any of the principal departments in the Executive Branch of this State, and any board, bureau, office, division, authority, or other instrumentality thereof.

Application Information - Prospective Employees

The bill requires each State employer or service provider to request from each applicant for employment in a position having regular contact with children detailed information concerning that person's employment history. Each such applicant would be required to provide (1) a list of the applicant's current employer, all former employers within the last 20 years, and an indication of which of those employment positions involved direct contact with children; (2) a written authorization that consents to and authorizes disclosure of the information requested and the release of related records by the applicant's employers, and that releases those employers from liability that may arise from the disclosure or release of records; and (3) a written statement as to whether the applicant has been the subject of any child abuse or sexual misconduct investigation by any employer, State licensing agency, law enforcement agency, or the Department of Children and Families, and whether the investigation resulted in a finding that the allegations were false or the alleged incident of child abuse or sexual misconduct was not substantiated; has ever been disciplined, discharged, non-renewed, asked to resign from employment, resigned from or otherwise separated from any employment while allegations of child abuse or sexual misconduct were pending or under investigation, or due to an adjudication or finding of child abuse or sexual misconduct; or has ever had a license, professional license, or certificate suspended, surrendered, or revoked while allegations of child abuse or sexual misconduct were pending or under investigation, or due to an adjudication or finding of child abuse or sexual misconduct.

The bill establishes penalties for the provision of false information by an applicant for employment; requires that current and former employers of an applicant respond to a State employer's or service provider's request for information within 20 days of that request; and allows the State employer or service provider to disqualify an applicant if the information on that person's application cannot be verified due to a non-response from a current or prior employer. The bill allows such disqualification or termination upon an affirmative response or finding of child abuse or sexual misconduct in an applicant's application or employment history.

Under special or emergent circumstances, the bill allows a State employer or service provider to employ or contract with an applicant on a provisional basis for a period not to exceed 90 days pending review of an applicant's information, provided the applicant submitted the information requested and the State employer or service provider has no adverse knowledge or information pertaining to the applicant. The bill provides that the application records would not be subject to public disclosure under the "open public records act," and prohibits the State employer or service provider from entering into any contracts or agreements that would expunge application records or make it difficult to report findings of child abuse or sexual misconduct.

Criminal History Record Background Check - Current and Prospective Employees

The bill requires an applicant for employment and each current employee of a State employer or service provider who is or will be employed in a position which involves regular contact with children, to undergo a criminal history record background check as a condition of prospective or continuing employment.

The prospective or current employee would be permanently disqualified from employment in that position if the criminal history record background check of that employee or applicant reveals a record of conviction for any of the following crimes and offenses: (1) a crime against a child, including endangering the welfare of a child and child pornography; child molestation; (2) abuse, abandonment or neglect of a child; (3) endangering the welfare of a person with a developmental disability; (4) sexual assault, criminal sexual contact or lewdness; (5) murder or manslaughter; (6) stalking; (7) kidnaping and related offenses including criminal restraint, false imprisonment, interference with custody, criminal coercion, or enticing a child into a motor vehicle, structure or isolated area; (8) arson, or causing or risking widespread injury or damage, which would constitute a crime of the second degree; (9) aggravated assault, which would constitute a crime of the second or third degree; (10) robbery, which would constitute a crime of the first degree; (11) burglary, which would constitute a crime of the second degree; (12) domestic violence; (13) terroristic threats; and (14) an attempt or conspiracy to commit any of these crimes or offenses.

Under the bill, for crimes and offenses other than those listed, an employee or applicant may be eligible for employment if the individual has affirmatively demonstrated clear and convincing evidence of rehabilitation.

Child Abuse Record Information Check - Current and Prospective Employees

The bill further requires each applicant for employment and each current employee of a State employer or service provider who will be or is employed in a position which involves regular contact with children to undergo a child abuse record information check. The State employer or service provider would be required to conduct that check to determine if an incident of child abuse or neglect has been substantiated against the prospective or current employee. Under the bill, if a current or prospective employee refuses to consent to, or cooperate in, the conduct of a child abuse record information check, the person would be ineligible for or immediately terminated from employment. The bill provides that a current employee of a State employer or service provider, or an applicant for employment, who is or will be employed in a position which involves regular contact with children, would be permanently disqualified from employment in that position if the child abuse record information check of that employee or applicant reveals a record of conviction for child abuse.