A recent decision from Pennsylvania’s Commonwealth Court is likely to result in additional burdens on construction firms working with Pennsylvania school districts. In an already tight labor market, the court’s decision in United Union of Roofers, Waterproofers and Allied Workers, Local Union No. 37 v. North Allegheny School District et al could add to the difficulty of finding qualified workers to perform work on school projects.

The North Allegheny case was initiated by the United Union of Roofers, Waterproofers, and Allied Workers, which represents roofers and others, and operates a hiring hall by which it contracts out its members to roofing companies. In the summer of 2015, two public school districts in Western Pennsylvania—North Allegheny and Fox Chapel—solicited bids for roofing projects at various buildings throughout their respective districts.  The contracts furnished by the school districts required all construction workers to obtain criminal background checks in accordance with Section 111 of the School Code.

The School Code, at Section 111, indeed requires background checks for independent contractors and their employees, but only for those individuals that will have direct contact with children.  That provision seems to account for the fact that construction work at public schools is typically performed during the summer break (when no children are present), and also that construction or renovations often require many tasks where workers have no contact, nor any possibility of contact, with children.

North Allegheny and Fox Chapel’s construction contracts exceeded the background check requirements imposed by the School Code, and several workers were denied security clearances to work on the roofing projects.  The union filed suit to prevent the school districts from disqualifying its workers, arguing that because its members had no direct contact with children, they were exempt from the background checks because such checks are not required by the School Code.

The Commonwealth Court rejected the union’s argument.  The court acknowledged that the School Code exempts from background checks those workers having no direct contact with children; however, the court reasoned that nothing prohibits the school districts from requiring criminal background checks that exceed the mandates of the School Code.  In other words, the school districts may require background checks even for those workers having no direct contact with students.

The impact of this decision is likely to add to the difficulty contractors may already experience in adequately staffing projects. We will continue to monitor any further developments in this litigation, as well as any legislative fixes that may arise.

If you have any questions about how this decision might affect your business, feel free to contact any member of the McNees Labor and Employment or Construction and Procurement Law practice groups.