Common Questions About Background Checks

The term “background check” can be interpreted to mean a criminal records check, or reference checks and other screening procedures, or both. An independent report regarding the Penn State University child sex abuse scandal defines a “standard” background check for the university as a criminal history check, a sex and violent offender registry check, plus the following additional components for specific positions based on job-related need: educational verification (required for all academic positions); motor vehicle record (required for positions where it can be regularly anticipated that a responsibility of the position will be to drive a university-owned vehicle); credit history check (conducted only for sensitive/critical positions with extensive authority to commit financial resources of the university); employment verifications; and license verifications (as needed based on job requirements).

When it comes to screening those who work with minors, background checks are an important (though by no means the only) component in maintaining the safety of the youth under the church’s care. Many secular charities—including public schools, Boy Scouts of America, Girl Scouts, Big Brothers Big Sisters, Boys and Girls Clubs of America, 4-H, youth soccer, and Little League—have responded to this risk by mandating criminal records checks for persons who will work with minors. Many churches are doing the same. Criminal records checks not only reduce the risk of child molestation, but they also reduce the risk of institutional liability based on negligent selection. They also are relatively inexpensive and easily accessible.

Many background checks are affordable for churches, small businesses, and organizations. And though financial costs for a background check can range from less than $50 to hundreds of dollars, there is a much greater cost—including a financial one—to being negligent in screening workers and volunteers. The number one reason churches go to court every year is cases involving an allegation of child sexual abuse. One study years ago indicated that 5 percent of church applicants had a criminal background. Negligent selection and child abuse cases cost more than any other form of litigation that churches face today. In addition to the legal costs, contributions from members may decline if they see church funds being swallowed up by attorney fees. Members often take a wait-and-see attitude before committing their financial resources to resolve a controversial legal concern.

Churches that screen will be in a better position to reduce their legal liability if sexual abuse does occur in a church program and the alleged perpetrator possessed a previously clean record.

Most importantly, churches must embrace a total screening program. It’s not just about administering criminal background checks. Only by implementing a wide array of measures will churches have the greatest chance of successfully protecting their congregations as well as avoiding the risk of legal (or ethical) wrongdoing.

Several. Keep in mind that—apart from an FBI fingerprint background check—there are no true “national” background checks that capture convictions from every county in every state. Even the accuracy of FBI checks has been questioned. For private employers (such as churches), the basic options are:

Some secular organizations, such as Penn State University, consider a “standard” background check to consist of the following two elements: (1) a criminal history check and (2) a sex and violent offender registry check.

Price and coverage of background check searches vary widely. There is even credentialing for this service (The National Association of Professional Background Screeners). Discuss your screening needs with the background check company your church is considering. Request the company to share any credentials it has obtained.

One other useful resource is NSOPW.gov, a free online database operated by the U.S. Department of Justice. It tracks sex offender registries nationwide, allowing churches to run searches by name and location.

Penn State University adopted a new background check process after its sex abuse scandal. That policy—HR99—outlines specific guidelines for the university. Though not authoritative for your church, Richard Hammar notes that HR99 sets a secular standard against which victims of abuse could compare other organizations with some credibility. Therefore, Hammar highlights guidelines from HR99 regarding keeping background checks on file.

HR99 mandates the following rules regarding screening procedures:

The existence of a criminal conviction does not automatically disqualify an individual from employment or employment consideration. Your organization may want to consider: (1) the nature and gravity of the offense(s); (2) time since conviction; (3) completion of sentence or any other remediation; (4) relevance to the position for which the candidate is being considered; and (5) discrepancies between the background check and what the candidate/employee self-reported.

The US Equal Employment Opportunity Commission (EEOC) also warns employers that they can’t always rely on arrest records. The EEOC states:

It’s important to note that criminal records are not 100 percent reliable. One report found that these records could be inaccurate due to “misspellings, clerical errors, or intentionally inaccurate identification information provided by search subjects who wish to avoid discovery of their prior criminal activities.”

Still, if your church intends to use an individual who has a criminal conviction in his or her background, consider documenting that decision and the rationale for it. Though criminal records are not always reliable sources of information, that doesn’t mean they should be ignored (far from it!). If something unfortunate happens, your church will be judged on whether it was exercising reasonable care under the circumstances based on what it knew or should have known.

Churches also must exercise caution with respect to the EEOC’s 2012 guidance regarding background screenings and employment discrimination. The agency’s guidance said “there is Title VII disparate impact liability where the evidence shows that a covered employer’s criminal record screening policy or practice disproportionately screens out a Title VII-protected group and the employer does not demonstrate that the policy or practice is job related for the positions in question and consistent with business necessity.”

As Hammar noted at the time of the EEOC guidance:

Unless your church operates a school, preschool, or daycare under licensing or accreditation standards that dictate the answer to this question, this is left to your organization’s discretion. You may consider checking with local schools or other youth-serving organizations to see what criminal conviction criteria would disqualify an individual from working with minors in their organizations; consider following that as a minimum standard. In that way, your organization might be viewed as following the standard of care in the community.

In general, prior convictions for crimes involving children, sex crimes (such as rape), and crimes of violence would indicate that the individual be disqualified from working with children. Lesser crimes—those involving theft, dishonesty, or drug or alcohol convictions, for example—might also disqualify the individual, depending on the circumstances. Again, this is based on your organization’s judgment.

Again, unless licensing or accreditation standards dictate otherwise, the frequency of re-running background checks is left to the church’s discretion. One recommendation for churches is to check with local preschools, schools, or other youth-serving organizations in the area to see how often they re-run background checks. If none of them conducts repeat background checks, this makes it less likely (but not impossible) that a church that follows a similar practice would be found negligent. In his article “New Best Practices for Protecting Children,” Hammar suggests that churches require updated background checks for employees, contractors, and volunteers at least every five years in order to best protect themselves against accusations of negligence.

Adopt a process to keep all documents regarding background checks secure and confidential. Keep a copy of the background check in some format as long as state law allows.

Church leaders should periodically review the effectiveness of their background check procedures. This can be accomplished in several ways, including periodic reviews of the procedures utilized by other youth-serving charities (including the public schools), and periodic evaluations of the competence of the criminal records search vendor used by the church. This may include Internet research, ascertaining which vendors other churches are using, and soliciting the input of the church insurance company, local law enforcement, legal counsel, and contacts with other churches and charities.

While it is technically possible, with a parent’s or a guardian’s permission, to run a criminal background check on a minor who wants to work with children, the results obtained are likely to be extremely limited. Still, many churches proceed with the background check as a matter of showing their due diligence. Additionally, it might be prudent to increase vigilance in other areas, such as checking references where the minor has volunteered or worked with children in the past and increasing supervision of the worker.

Church Law & Tax would like to thank Senior Editorial Advisor Richard Hammar, Eric Spacek of GuideOne Insurance, Editorial Advisor James Cobble Jr., Editorial Advisor Frank Sommerville, Peter Persuitti of Arthur J. Gallagher & Co., and Brian McAuliffe of Willow Creek Community Church for their contributions to this article.

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