New Rules for Fingerprinting Contractors

New Rules for Fingerprinting Contractors

Last June, Governor Abbott signed H.B. 3270 into law, amending criminal background check requirements for contractors and subcontractors who work at public schools, open-enrollment charter schools, and shared service arrangements. The previous statute, passed in 2007, required that all architects, engineers, and construction contractors performing services for a school district who had 1) continuing duties related to the contracted services; and 2) direct contact with students be fingerprinted and submit to a national criminal history search. The statute created substantial uncertainty for districts and contractors alike in determining what constitutes “direct contact with students.”

H.B. 3270 seeks to clarify this ambiguity by exempting certain classes of contractor-employees from the fingerprint requirement primarily through Section 22.08341 of the Texas Education Code. The statute defines a person who does not have the opportunity for direct contact with students, and thus is not required to be background checked, to be one whom:

• Performs public work involving the construction of a new instructional facility if the person’s duties will be complete prior to the seventh day before the first date the facility will be used for instructional purposes; or
• Performs public work involving the construction, alteration, or repair of an existing instructional facility but:
  • The work area contains sanitary facilities and is separated from all areas used by students by a secure barrier at least six feet in height; or
  • The contracting entity has adopted a policy prohibiting employees, including subcontractors, from interacting with students or entering areas used by students, informs their employees of the policy, and enforces the policy.

Certainly, the provision of a clear definition of which contractors need to be fingerprinted is beneficial to all parties involved. The allowance for a contractor to simply adopt a policy prohibiting student contact, however, is unlikely to provide meaningful student protections and may create unnecessary risk to students and districts alike.

Section 22 of the Education Code sets a floor with respect to contractor background checks.  Districts, however, are free to require more stringent constraints in the interest of student safety.  For districts choosing to adopt a more rigorous approach, a prudent risk mitigation measure would be to require any contractor not physically separated from students to be background checked and disallow the “policy provision” entirely.

Prepared by the offices of Richard Abernathy, this article should not be construed as legal advice related to any specific facts or circumstances. Although this article covers legal subjects, it is intended to educate readers and not to provide advice that will be the basis for action or inaction in any specific circumstance. Viewing these materials does not create an attorney-client relationship between Abernathy, Roeder, Boyd & Hullett, P.C. and the reader or the reader’s institution. For circumstance-specific legal advice, please directly contact a licensed attorney.