49-5-413 - Investigation of applicants for teaching or child care positions.
49-5-413. Investigation of applicants for teaching or child care positions.
(a) In addition to the requirements of § 49-5-406, a local board of education or any child care program, as defined in § 49-1-1102, shall require any person applying for a position as a teacher and any person applying for any other position requiring proximity to school children or to children in a child care program to:
(1) Agree to the release of all investigative records to the board or child care program for examination for the purpose of verifying the accuracy of criminal violation information as required by § 49-5-406(a)(1)(A); and
(2) Supply a fingerprint sample and submit to a criminal history records check to be conducted by the Tennessee bureau of investigation.
(b) Any retired teacher applying for a position as a teacher in accordance with title 8, chapter 36, part 8 shall not be required to comply with this section if the application is being made to the local board of education from which the teacher retired.
(c) Any reasonable costs incurred by the Tennessee bureau of investigation in conducting the investigation of an applicant shall be paid by the applicant the first time the applicant applies for a position with a local board of education or a child care program. The applicant shall be provided a copy of all criminal history records check documentation provided to the local board of education or child care program to which the applicant first applies. In lieu of additional criminal history records checks for subsequent applications, the applicant may submit copies of the applicant's initial criminal history records check documentation and shall not be required to pay any additional costs. Any local board of education or child care program may reimburse the applicant for the costs of the investigation if the applicant accepts a position as a teacher or any other position requiring proximity to school children or children in a child care program. Any local board of education or child care program may establish a policy authorizing payments for investigations of an applicant who provides school maintenance, clean up, food service and other such functions other than administrative or teaching functions or duties. A local board of education or child care program may pay for an investigation of the applicant regardless of whether the applicant accepts an offer for employment with the board of education or child care program.
(d) (1) (A) Any person, corporation or other entity that enters into or renews a contract, or contracts with any person, corporation, or other entity that enters into or renews a contract, with a school, local board of education or child care program as defined in § 49-1-1102, on or after May 30, 2008, shall be required to comply with this subsection (d) if the contract requires:
(i) The person or an employee of the person, corporation or other entity to have direct contact with school children or to children in a child care program; or
(ii) The person or employee to have access to the grounds of a school or child care center when children are present.
(B) Any person, corporation or other entity that, on or after September 1, 2007, but prior to May 30, 2008, entered into or renewed an applicable contract or contracts with a school, local board of education or child care program as defined in § 49-1-1102, and the contract remains in effect on May 30, 2008, shall be governed by this subsection (d) as it existed prior to May 30, 2008. However, all parties to any such contract may agree to come within subsection (d), even if the contracts were entered into or renewed prior to May 30, 2008.
(2) (A) It is the duty of the person, corporation or other entity that employs a person described in subdivision (d)(1) to require the applicant to supply a fingerprint sample and submit to a criminal history records check to be conducted by the Tennessee bureau of investigation and the federal bureau of investigation prior to permitting the person to have contact with the children or enter school grounds.
(B) If the person, corporation or other entity is an out-of-state employer, the requirements of subdivision (d)(2)(A) are satisfied if the employer presents proof that a criminal history records check that is comparable to that required by subdivision (d)(2)(A) has been conducted on the employee described in subdivision (d)(1). To qualify as a comparable criminal history records check, it must include a fingerprint-based criminal history records check that is conducted by the federal bureau of investigation.
(C) Notwithstanding subdivision (d)(2)(A), a person, corporation or entity that, for one (1) employee, satisfies the requirements of this subsection (d) for one (1) school, one (1) local board of education or one (1) child care program shall be deemed to have satisfied the requirements for any other school, board of education or child care program, as long as the employee remains in the continuous employment of the same person, corporation or entity.
(D) Notwithstanding subdivision (d)(2)(A), a person, corporation or other entity that, for one (1) contract, satisfies the requirements of this subsection (d) shall be deemed to have satisfied the requirements of this subsection (d) for any subsequent contract, as long as the employee servicing or working on that contract remains in the continuous employment of the same person, corporation or entity.
(3) (A) No employer, or employee of the employer to whom this subsection (d) applies shall come in direct contact with school children or to children in a child care program or enter the grounds of a school or child care center when children are present until the criminal history records check has been conducted on the person.
(B) No employer, or employee of the employer, to whom this subsection (d) applies shall come in direct contact with school children or to children in a child care program or enter the grounds of a school or child care center when children are present if the criminal history records check indicates that the employer or employee has been convicted of an offense that, if committed on or after July 1, 2007, is classified as a sexual offense or a violent sexual offense as defined in § 40-39-202.
(C) (i) If an employee is convicted of an offense that, if committed on or after July 1, 2007, is a sexual offense or a violent sexual offense as defined in § 40-39-202, after the employer has conducted a criminal history records check on the employee, the employee shall notify the employer of the conviction within seven (7) days from the date of conviction.
(ii) An employee commits a Class A misdemeanor, punishable by fine only, who knowingly fails to disclose to the employer within the required seven (7) days that the employee has been convicted of an offense specified in subdivision (d)(3)(C)(i).
(4) This subsection (d) shall only apply if the employer or employee of the employer comes in direct contact with school children, children in a child care program or enters the grounds of a school or child care center when children are present during the ordinary course of performing a function required or permitted by the terms of the contract. Any action involving direct contact or entry by an employee that is outside the ordinary course of performing a function required or permitted by the terms of the contract shall not in any way be deemed to be authorized or approved by the employer and the employer shall not in any way be deemed to be liable for the contact or entry, vicariously or otherwise. However, nothing in this subsection (d) shall authorize contact or entry by an employer or employee of the employer if contact or entry is prohibited by any other law; provided, that, with respect to the contact or entry, the person, corporation or other entity that employs a person described in subdivision (d)(1) shall not in any way be deemed to be liable, vicariously or otherwise, for any actions taken by the employee, unless the employer has actual knowledge that the other provision of law prohibits contact or entry by an employee.
(5) (A) This subsection (d) shall not apply to:
(i) Government personnel engaged in law enforcement, medical or emergency health services;
(ii) Utility personnel, where utility means any entity created or authorized by law to provide electricity, gas, water, wastewater services or telecommunications services or any combination of these services;
(iii) Delivery or pick-up service providers where those services involve only scheduled visits under the supervision of school personnel; or
(iv) A person whose contract is for the performance of a service at a school-sponsored activity, assembly or event at which school officials or employees are present when the service is performed and where the activity, assembly or event is conducted under the supervision of school officials or employees.
(B) Nothing in this subsection (d) shall be construed to prevent any person, corporation or other entity that employs a person described in subdivision (d)(1) from directly receiving, upon payment of the appropriate fee, information indicating whether the employee meets or does not meet the criteria set out in this subsection (d).
[Acts 1993, ch. 350, § 1; 1996, ch. 843, §§ 2, 3; 1999, ch. 480, §§ 1, 2; 2000, ch. 903, § 3; 2000, ch. 981, § 50; 2007, ch. 587, § 1; 2008, ch. 1080, §§ 1-5.]