MINIMIZE CHILD ABUSE- HOW TO DO EXCELLENT BACKGROUND CHECKS FOR CHILD AND FINANCIAL PROTECTION-PART 1

By H. Robert Showers, Esq. 

Protecting your organization, both from legal liability and from the havoc that one employee or volunteer can create, is a long-term responsibility that requires vigilance and care at every level.  This responsibility begins even before you hire an employee or retain a volunteer, as you create questions on your application form, collect applications from potential employees/volunteers, and conduct interviews.  The hiring process is more than procedural, and cannot be dismissed as an unimportant part of protecting your organization. In the volunteer recruitment, it can be overlooked since it is not paid. Legal claims can easily crop up as a result of a hiring decision that was not made with reasonable care.  Not all background checks are the same and there is power in the details.

For example, a claim of negligent hiring may be brought against your organization for the abusive actions of an employee you hired if you should have and could have found out about their criminal record but failed to do so before you hired them.[1]  If your organization deals with children on a regular basis, your responsibility is potentially even greater.[2]  Pleading ignorance is not a defense, and in some cases a background check is required in order to fulfill your duty as the employer.[3]  Criminals can easily infiltrate your organization and silently begin their destructive work without even the most basic screening process.

Conducting a background check is one of the best ways you can protect your organization and you should always obtain a waiver from an applicant to conduct this check.  If an applicant refuses to provide you with this waiver, this should be a red flag that they may have lied on their application form about their history and may have issues in their past that would harm your organization.  In all other instances where the application has signed a waiver, a background check is essential.  A properly chosen background check that is efficient, cost-effective, timely, and reasonably broad is the best insurance you can buy to protect against the physical, emotional, spiritual, financial, and even legal suffering that will almost inevitably result if you negligently allow just one corrupt employee to infiltrate your organization undetected.

As a general principle, each type of position in your organization should have a background check uniquely suited to the responsibilities of that position.  For example, a full-time employee should merit more in-depth checks than a volunteer.  Similarly, a full-time financial employee should include a background check with a focus on past financial crimes and should include a credit check, while a volunteer who works with children may not need a credit check.  The following table shows how different types of positions can be grouped together based on their responsibilities so that the respective background checks can be tailor-made.

Background checks, however, may not “profile” or discriminate amongst applicants for the same position.[5]  For example, a background check for a single child-care position should not be more invasive for an African-American male applicant than for a white, female applicant.

It is essential to know what kind of information a background search analyzes.  Be wary if a provider does not or will not provide details on the kind of information they include in their searches.  Be careful of websites that offer instant results or offer free or almost-free results.  Some of these companies may be searching very limited information, perhaps only in one or two counties where the applicant primarily lived, and could be missing critical information elsewhere.[6]

It is a common misconception that background check providers can rely upon a national database of criminal records.  There is no such database.[7]  Databases are kept on the state level and sometimes by counties or cities within the state.  Moreover, each state reports their information differently.  Some states may keep a database of every type of offense, including misdemeanors and non-convictions.  Other states may only report felony convictions.[8]  State laws also limit what is reported.  For example, some states will allow a simple arrest to be reported in the database, even if it resulted in no conviction.[9]  Other states will only generate a record in their database if the criminal is actually incarcerated in state prison, even though some crimes that involve potential child abuse or sexual activity never result in incarceration since they are resolved through a plea bargain.[10]

Moreover, most detailed criminal and identification records are maintained in county offices, and although county records may in some cases be aggregated and reported at the state level, there is no law requiring that state records accurately reflect all county records in that state.[11]  A reasonably comprehensive search must involve state-specific and county-specific searches, and may require going to the courthouse to pull files manually from public records.  Be wary of any provider alleging they can search all relevant county records instantaneously, since the important and most accurate records are only partially available online, depending on the county.  Ask whether the provider will take the required time to conduct a search on-site where necessary to verify or discover relevant information.  This is essential to a reasonably accurate report, which is the only kind that will actually protect you and your children.

You should also find a provider who will do the necessary leg-work to verify the information they discover.[12]  They must be reasonably thorough in confirming their findings, so that you do not end up attributing criminal activity negligently and wrongfully to an innocent person.  Instant, online searches are likely to fail this test, since many accurate records are unavailable instantaneously.

A quality background report should have several other important features: 1) an adequate historical scope (It is industry standard for county records to go back seven (7) years,[13] although ten (10) years is often available with an extra fee.  Going back further may be well-worth the extra cost when screening a full-time employee who has high levels of access to children; 2) insure the age of the databases;[14]  (If a database was last updated several years ago, it is risky for a background check to be based on the records they find in that database); 3) how is the provider will run searches based on the name and SSN of the applicant.[15]  A provider should be able to search for potential aliases and run searches for all versions of the applicant’s name, nicknames, and aliases.  They should also conduct a simple search to verify that the applicant’s SSN is accurate and actually belongs to the applicant.  A fake SSN is an easy way for a criminal, who has so far escaped any other official reports, to fly under the radar and move from church to church.  Of course, it is important to find out up front if any of these basic elements will cost you extra.

The following are basic categories of information that can be included in a background search.  You should be aware of the nature of each type of database, and decide which databases will be best suited to screen applicants for each of your available positions:

1. Sex-offender registries for all 50 states
2. County courthouse searches
3. Social Security number verification
4. Motor vehicle reports
5. Credit reports
6. License verification
7. Education verification
8. Employment verification
9. Reference checks

A background check service should provide reports that are flexible, can be tailored to your needs, and are user-friendly.  Many providers allow you to submit or access reports remotely, any time of day.  Some reports can be returned to you very quickly, like a search of the National Sex Offender Registry.  Others will require manual collection of documents, which should be returned in no more than three (3) to five (5) business days.  Providers should also have easy-to-access support via telephone, e-mail, and online materials, so you can process your requests efficiently.

All background check services must comply with the Fair Credit Reporting Act, and other state and federal requirements. For example, if a background check provider, that is not a law enforcement agency, claims to be able to provide free reports from the National Crime Information Center (NCIC), they are most likely accessing that database illegally, since it is only available to FBI and licensed law enforcement agencies.  Make sure that any provider is complying with the FCRA and other legal requirements in their access of information.  The size of the provider, as well as references and previous customers, can help provide a good picture of their reputation for searching legally.  The provider should also have in place security systems to protect sensitive data they collect on your behalf.  This should include a protected online portal and communication with you that is not through email.

There are some searches you can conduct yourself and potentially save time and money.  For example, anyone can run a search through the National Sex Offender Public Website (NSOPW).[16]  This site is coordinated by the U.S. Department of Justice and involves local sex offender registries.  However, even this search is limited by what each jurisdiction provides in their database; be careful relying on results without verifying the information on the local level.

Do not be penny wise and pound foolish when children’s lives are at stake and your ministry at risk.  Stay tuned for part 2 about reference checks and more for CHILD AND FINANCIAL PROTECTION.

Disclaimer: This memorandum is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this memo should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. Simms Showers LLP expressly disclaims all liability relating to actions taken or not taken based solely on the content of this memorandum.  Please contact Robert Showers  for legal advice that will meet your specific needs. 

[1] For example, Virginia has established a distinct claim of negligent hiring. Blair v. Defender Servs., 386 F.3d 623, 628–29 (4th Cir. 2004).  In noting the existence of this claim, the Virginia Supreme Court commented that the church who hired the child abuser did not ask any questions about the employee’s past, and “had [the church] investigated, it probably would not have offered the assailant the job.” Id. (quoting J. v. Victory Tabernacle Baptist Church, 236 Va. 206, 208–09 (1988)).  See also Morgan Fife, Predator in the Primary: Applying the Tort of Negligent Hiring to Volunteers in Religious Organizations, 2006 B.Y.U.L. Rev. 569, 569–70 (2006) (“One potential source of recourse that victims of molestation and other tortious actions and their guardians may pursue is the tort of negligent hiring. This quickly expanding area of tort law consists of actions in which victims seek to impose liability on third-party employers for an employee’s tortious or criminal acts; in this way, the tort of negligent hiring is similar to respondeat superior. However, in contrast with respondeat superior, an employer potentially may face liability for acts outside the scope of an employee’s employment if, among other things, the employer had either actual or constructive knowledge that the employee was unfit for the employment.”).

[2] See, e.g., Juarez v. Boy Scouts of Am., Inc., 97 Cal. Rptr. 2d 12, 36 (Cal. Ct. App. 2000) (“Generally, a greater degree of care is owed to children because of their lack of capacity to appreciate risks and avoid danger.”); Machin v. Walgreen Co., 835 So. 2d 284, 284 (Fla. Dist. Ct. App. 2003) (“Persons chargeable with a duty of care and caution toward children must take the precautions which are available to them.”); Cook v. Smith, 33 S.W.3d 548, 554 (Mo. Ct. App. 2000) (“Ordinary care may require more vigilance and caution when a child is involved if there is a potentially dangerous situation of which a supervisor is or should be aware.”) (internal citations omitted); Gloria X v. Gibbs, 659 N.Y.S.2d 349, 351 (N.Y. App. Div. 1997) (“The standard of care thereby owed to this child is indisputably higher than that which would be required for the care of an adult.”).

[3] See Doe v. Catholic Soc’y of Religious, 2010 U.S. Dist. LEXIS 5019, at *25–*26 (S.D. Tex. Jan. 22, 2010) (“One who retains the services of another has a duty to investigate the background of that individual for fitness for the position, to remain knowledgeable of that fitness and is liable if another person is injured in some manner related to his employment because of a lack of fitness.”) (quoting Robertson v. Church of God, International, 978 S.W.2d 120, 125 (Tex. App. 1997)).

[4] This chart has been modified and taken from Church Insurance Agency Corporation, Suggested Background Screening Checks, available at (Accessed June 19, 2012).

[5] Tara Beecham, Screening the Screener, Church Buyer’s Guide, Christianity Today, July 7, 2008, available at http://www.christianitytoday.com/cbg/2008/julaug/2.23.html.

[6] Chad Terhune, Background Checks: What You Need to Know, BusinessWeek, May 29, 2008, available at .

[7] Id.

[8] Fact vs. Myth Part 2, October 13, 2010, 9:01pm, at http://volunteerscreening.info/51/fact-vs-myth-part-2/.

[9] Beecham, supra n.5 (quoting Seabrook).

[10] Id. (quoting McCarty).

[11] John R. Throop, Background Checks: Dig Deeper with Customized Searches, Church Buyer’s Guide, Christianity Today, November 1, 2006, available at http://www.christianitytoday.com/cbg/2006/novdec/3.24.html.

[12] Beecham, supra n.5.

[13] Id. (quoting McCarty).

[14] Id.

[15] Id.

[16] Dru Sjodin National Sex Offender Public Website, United States Department of Justice, available at http://www.nsopw.gov/Core/Portal.aspx?AspxAutoDetectCookieSupport=1.