Wolves in Volunteers’ Clothing: The Need for Background Checks

New Hampshire Town and City, November/December 2005
By Greg Langan

We all assume that background checks are being done on teachers, summer day camp counselors and nursing home staff in order to protect our children and vulnerable adult populations. Are these checks being done on all staff who work for schools, municipal recreation departments and elder care facilities? Are the checks being done on volunteer staff or just employees?

The passage of the National Child Protection Act (NCPA) in 1993, the Violent Crime Control Act of 1994, and the Volunteers for Children Act of 1998 provided the states with the authority to enact legislation requiring schools and organizations serving vulnerable populations to conduct background checks on employees, contractors and volunteers.

Legislation requiring background checks and criminal record checks is the responsibility of each state’s governing bodies; there is no federal law requiring background checks. Since it is each state’s responsibility, there is no single, uniform requirement for criminal record checks of employees, contractors and volunteers.

The Need for Background Checks

Congress and the nation are convinced that criminal record checks are a good method to screen teachers, caregivers, program staff, and others who have contact with children and vulnerable populations. The data on crimes against children, compiled by the U.S. Department of Justice (DOJ), provides statistical evidence that criminal record checks are valuable:

* 59 percent of current prisoners with a child victim had been previously convicted of a crime.
* 42 percent of current offenders with a child victim and a prior criminal history had a past conviction for a violent crime against either children or adults.
* 19 percent of current child victimizers convicted of prior violent crimes had been convicted in the past of statutory rape, lewd acts with a child or child abuse.

Criminal record checks will never be able to identify every potential victimizer of children and vulnerable populations, especially those without a criminal record. Nevertheless, the DOJ data provides rationale for conducting those checks in order to remove applicants with criminal records from the employee selection process.

The Case for Volunteer Background Checks

The U.S. Department of Justice data, cited earlier, validates an assumption that offenders will repeat. Screening will identify those with prior criminal convictions. More than 87,000,000 children are involved in activities that depend on volunteer staff persons. Millions of other vulnerable citizens also are involved in volunteer-staffed activities. The sheer number of potential victims is likely to attract attention from potential volunteers with a criminal predator background, looking to find a new victim.

The United States Congress and state legislatures have recognized the problem and have passed legislation that provides organizations with access to law enforcement databases for criminal record checks. With the passage of the Volunteers of Children Act in 1998, all organizations that provide education, recreation or care for children and vulnerable populations have access to national fingerprint-based criminal history checks. The American Youth Soccer Association, Little League Association, Boy Scouts of America and countless other organizations dedicated to children’s activities are requiring background and criminal record checks on staff and volunteers.

Criminal background checks are becoming the norm for employers. Whether it is a result of the post-9/11 terrorism concerns, the perceived need for additional security in the workplace or the fear that employers face involving liability for failure to screen, employer-requested criminal history checks are not commonplace. The trauma suffered by the victims of sexual and physical abuse cannot be measured against the cost to complete the criminal history background checks. Admittedly, the school district, the city recreation department or the county nursing home will have to deal with the cost of the criminal background reports. Consider one school district in the northeast: 28,000 students and 2,200 volunteers. The cost of completing criminal history checks for the 2,200 volunteers, if it could be done for $28 per volunteer, would amount to more than $60,000.

What Records Should Be Reviewed for Background Checks?

A “volunteer background check" could involve checking a number of records, including:

* · Driving records
* · Professional licenses
* · Past employment records
* · Credit history
* · Criminal records
* · References
* · Education
* · Interviews

The type of record that is reviewed should have some bearing on the role and responsibility that the volunteer is seeking to undertake. Checking criminal records will yield information about criminal behavior. Reviewing driving records will provide insight into the volunteer’s driving behaviors. Credit history records may be useful if the volunteer will be handling cash or financial transactions. Past employment records may provide information about the volunteer’s stability or work responsibility.

If convictions are predictive of future behavior, why not use arrest records in the screening process, too? Case law, based on Title VII of the U.S. Civil Rights Act of 1964, bars the use of arrest data in screening processes for paid positions. It is wise to assume that the same case law would also preclude using arrest data for screening volunteers. The screening process should consider convictions and only those arrests for which final disposition is pending.

The criminal history record check is a screening tool, not a selection tool. Do not make the assumption that every volunteer who “passes" the criminal check will be able to contribute to the organization. There should be volunteer selection criteria that are used after the volunteer applicant clears the criminal history record check.

Is There Any Defense for Organizations that Don’t Do Criminal Checks?

Courts are increasingly holding employers liable for negligent hiring practices that result in injury to other employees or to third parties. The employer is expected to use reasonable care in hiring employees and to take steps to prevent injury where there is a foreseeable risk. Any legal distinction between employer-employee negligent hiring and employer-volunteer hiring is likely to be irrelevant, especially in a setting where volunteers are interacting with children and vulnerable populations.

The Volunteer Protection Act, signed into law by President Clinton in 1997, provides some immunity for volunteers from claims for injury or damage to others while the volunteer is performing their duties. It does not, however, provide immunity for willful, wanton or illegal acts committed by the volunteer. The act was never intended to provide liability immunity for the organization.

In a recent case involving sexual molestation by a volunteer, the defendant, a school, had not conducted a criminal record check on the volunteer. The prosecution alleged negligence because there had been no background check, even though the check would have revealed no criminal history for the volunteer.

In another case, the plaintiff invoked 42 USC Section 1983, alleging that the organization had been “deliberately indifferent" to protect the student’s right to personal body integrity. The deliberate indifference was manifest in the organization’s lack of background screening and the absence of a policy on reporting suspected sexual abuse of students. Furthermore, the organization had never instructed staff and volunteers in recognizing the warning signs of abuse or provided guidelines for dealing with such suspicions.

Are There Other Options to Doing a Criminal Record Check?

There are organizations that are asking their volunteers to sign “Behavioral Expectation Policies" that outline the expected behaviors of volunteers when working with children and vulnerable populations. While some of the behaviors are fairly specific, such as, “staff and volunteers may not hug any child," there are a number that are less specific, such as, “represent the organization by being a positive role model." The lack of specificity in the latter example renders it ineffective for describing expected behaviors.

Even with the signature of the volunteer, indicating agreement with the policy, there is no assurance that the volunteer will abide by the policies. If the volunteer violates the Behavior Expectations, the organization may have grounds to release the non-compliant volunteer from service. But the policy does nothing to protect children and vulnerable populations from abuse and victimization.

Are There Other Risk Management Controls that Should Be in Place?

There are a number of other risk management techniques to guard against opportunities for victimization that should be integral with the operation of the organization:

* • Minimize (or eliminate) the times when a volunteer has isolated one-on-one contact with children or vulnerable populations.
* Ensure that supervision practices permit close monitoring of the staff and volunteers with children and other vulnerable populations.
* • Change facility design to reduce or eliminate private, secluded areas within buildings that could be occupied by volunteers working with children and vulnerable populations.
* • Require supervisors to interact face-to-face with children and vulnerable populations to detect any concerns.
* • Establish policies that limit contact between the volunteer and the children or vulnerable population, outside of the organization’s activities.
* • Consider whether changing volunteer assignments periodically would be appropriate for inhibiting the development of close relationships.
* • Develop and adopt a policy that requires the reporting of all suspicious conduct to a law enforcement or protective services agency—and then train all staff and volunteers on the policy and the reporting procedures.

Criminal history background checks are insufficient to absolutely guarantee the protection of children and vulnerable populations. Criminal checks will only uncover criminal predators with a criminal record. The background checks must be coupled with other risk management procedures to help the organization protect against victimization by volunteers.

What Do I Need to Do to Get Authorization to Conduct Background Checks on Volunteers?

Volunteer applicants should authorize the organization to conduct the background check. While it may be possible to check public records to obtain some of the information that would be checked in the background investigation, it is always advisable to have the volunteer applicant sign the authorization before commencing any checks. If the volunteer applicant is unwilling to authorize the background check, the organization should not read anything into the refusal, but should withdraw the invitation to apply for a volunteer position.

Your local law enforcement agency will be able to advise your organization about the authorization form that is required for the criminal history background check. If the process involves a national search through the FBI database, your local law enforcement agency will be able to provide the criminal history questionnaire, fingerprint cards and authorization forms.

If the background check is being conducted by a commercial investigative or commercial consumer reporting service, the requirement of the Fair Credit Reporting Act (FCRA) and the Fair and Accurate Credit Transactions Act of 2003 (FACTA) will apply. The volunteer applicant must complete an authorization form that is on a page separate from all other application information. This authorization form must identify the types of information that will be provided by the reporting company and include the authorization signature of the volunteer applicant.

Further, if the report will include interviews with others, the organization must give notice of the individual’s right to ask about the nature and scope of the report. If the organization needs medical information in the report, an additional authorization will be required.

Every organization should be aware that there are obligations placed on those who receive reports from commercial investigative or commercial consumer reporting agencies:

* • The organization has an obligation to notify the subject of a back-ground check before taking any adverse action based on information included in a report. An example would be if the volunteer applicant is not offered a position based on information included in the report.
* • The volunteer, depending on the state, may be able to receive a copy of the report at no cost.
* • The volunteer is entitled to receive a copy of the report if there is any “adverse" volunteer position decision.
* • The volunteer is entitled to challenge the accuracy and completeness of the information in the report directly with the consumer reporting or consumer investigative reporting agency.
* • The information in the report should be treated as confidential and should only be available to those persons in the organization who need to know the information in order to make a decision on the volunteer applicant.
* • Disposal of consumer information reports must be through shredding paper copies and erasing electronic data copies so that the information cannot be reconstructed.
*Summary
Criminal predators may be trying to infiltrate our schools, recreation departments and elder care facilities. The DOJ confirms what the media has been reporting: Criminal predators will continue to seek new victims until they are stopped.

An effective way to identify known criminal predators is through criminal history background checks. Congress and state legislatures have opened access to fingerprint-based criminal history databases for employee and volunteer record checks. States have responded by requiring criminal record checks as part of the certification screening for some professionals and pre-employment screening for some positions.

Prudent risk management practices suggest that, “what is good for the goose, is good for the gander." Anyone working closely with children, whether it is a teacher or a volunteer, a softball coach or a summer day care provider, should be subject to the same criminal record check screening process. Anyone working closely with vulnerable adult populations, whether it is a registered nurse or a patient transport aide, should be subject to the same criminal record check screening process.
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