Should someone convicted of assault for a schoolyard brawl decades ago be banned from working in child care?
What if that person was charged but never convicted?
A sea change in state and federal laws governing criminal background checks for child care workers, intended to improve safety in day care, could force out thousands who have a prior offense, even if they’ve worked without problems for years.
The new rules are sparking intense anxiety among Massachusetts day care administrators, who are already scrounging for good employees in an industry with chronically low pay and high turnover. As many as 30 percent of day care workers in Massachusetts leave each year, and many are making little more than minimum wage.
Now, administrators worry the stringent new background checks will drive out many valued employees, especially women, in a tight labor market. Limited screenings began last fall, but the bulk of the early education workforce will come under the microscope soon.
“Everyone is concerned about the safety of children, and at the top of our minds is making sure our centers are as safe as they can be,” said Sharon Scott-Chandler, executive vice president of Action for Boston Community Development, which serves about 2,300 children at 31 sites. “But let’s make sure [the law] doesn’t have a disparate impact on the people we serve and we hire.”
The federal law imposes a lifetime ban on anyone convicted of any one of eight felonies, including murder, arson, and assault, or of a violent misdemeanor against a child, such as sexual assault or child pornography. Banned workers may appeal only the accuracy of the record, not the ruling that says they can no longer work in child care.
But the related new Massachusetts regulations go significantly further. The rules allow regulators to demand legal records from any child care employee or job applicant for virtually any prior criminal offense, such as disorderly conduct or drunken driving, even if the offense is decades old or was committed when they were juveniles.
Regulators at the state’s Early Education and Care Department will review each background check that indicates a conviction — or a charge without a conviction — along with the related documents. Those may include a recommendation letter from a current or prospective employer.
The department will decide whether that person can be hired or retained, and the state will tell child care center administrators only if a worker or prospective employee is “suitable” or disqualified, but won’t share details about the reason for the decision.
That’s a change that makes many administrators uneasy, said Bill Eddy, executive director of the Massachusetts Association of Early Education and Care, the industry’s trade association.
The state has long required background checks for new child-care workers and screens current employees every three years. But, until now, the state has sent the results to day-care centers and let them decide whom to hire.
“An employer has a responsibility to be able to look parents in their eye and say, ‘I know the background of my employees and I am comfortable,’ ” Eddy said. “But now employers will not be able to say that, because they won’t know the background of their employees.”
Workers disqualified under the state rules can reapply in five years.
Ann Reale, the state’s education undersecretary, said regulators need to be tough: Children’s lives are at stake.
“We are making sure that no one has unsupervised access to children who has a crime in their background we think poses a risk,” she said.
Reale said that regulators wanted the authority to review cases in which people were charged but not convicted, because even if authorities didn’t have sufficient evidence to prosecute a person, there may be warning signs of a potential problem.
The new background checks were supposed to go into effect Oct. 1, as required by federal law. But the department, which has struggled for years to hire enough day-care inspectors, is still working on its new computer system. So it has been notifying only candidates whose background checks turned up convictions for the serious felonies and misdemeanors that require mandatory disqualification under federal rules. That translates to 32 candidates, fewer than 1 percent of the background checks run since Oct. 1, the department said.
That’s a fraction of what’s to come.
The department said it anticipates about 15 percent, or roughly 15,000 of the 100,000 checks run annually under the new system, will indicate a prior conviction or charge that needs to be reviewed. It said it intends to hire seven staffers over the next year, in addition to 23 it already has, to review these cases.
But day-care administrators in urban areas say up to 30 percent of their workers have incidents in their backgrounds that would trigger a state review.
Stephen Huntley, executive director of Valley Opportunity Council in Holyoke, said his organization hires staff who look like, and can relate to, the families they serve. Staff members are often women who have been through bruising marriages and child custody battles that end up in court, with related charges or convictions.
Huntley and other urban administrators said their mission is to give people second chances, hiring them to work under strict supervision. They have, he said, rarely run into problems.
He said one model employee in her late 30s, who worked for him for a decade, was convicted of assault for a schoolyard fight 20 years ago as a juvenile. Under the new rules, that’s a mandatory disqualification. She quietly left a few weeks ago.
“I would trust my own kids with her in the blink of an eye,” Huntley said.
Providers also said they worry the state reviewers will not have the cultural sensitivity to understand the conditions and context many low-income workers face, including racism, that contributed to their conviction or charges.
Reale, the state undersecretary, said the state is providing “bias training” to reviewers and insisted the new system will be fairer to workers than one that lets program administrators decide.
“By having our people do it in-house, we have a way of training consistently to the same set of expectations and cultural sensitivity and risk to children that we cannot do when it’s being spread across thousands of programs,” she said.