The Volunteers for Children Act

What church leaders need to know

Richard R. Hammar, Attorney, CPA
Bio

What church leaders need to know [Negligence as a Basis for Liability]

Article summary. Congress enacted the Volunteers for Children Act to allow private charities to obtain nationwide FBI criminal records checks on employees and volunteers who work with minors. The Act amends the earlier National Child Protection Act. It is now likely that churches in many states will be able to obtain FBI background checks. This article provides church leaders with a full explanation of the new law and its relevance to church practices.

In 1993, Congress passed the National Child Protection Act as a bold new attack against the molestation of children in youth serving organizations. Unfortunately, the Act never lived up to its purpose because of a technical problem in the legislation. A few months ago, Congress enacted the Volunteers for Children Act, which is designed to correct the problem with the earlier legislation and allow the Act to fully serve its important purpose. As a result, church leaders need to be familiar with the provisions of the original National Child Protection Act, since it now will present them with crucial options and decisions. This article will review the background and purpose of the National Child Protection Act as well as the Volunteers for Children Act, and fully explain their impact on churches and other religious organizations. It is essential for church leaders to be familiar with this information.

National Child Protection Act of 1993 – Introduction

Many churches take the issue of child sexual abuse seriously and screen children’s workers to determine their suitability for working with minors in the church. Some churches attempt to obtain information from local law enforcement agencies on the criminal records of persons who want to work with children. Other churches seek this information only in special cases where serious but unsubstantiated allegations have been made about a prospective worker. Unfortunately, in many communities churches are unable to obtain this information from law enforcement agencies. Even if a law enforcement agency is willing to assist, the criminal records check ordinarily covers only local or state records. Information about criminal convictions in other states is not available. Many other institutions that provide child care face these same frustrations.

Congress enacted the National Child Care Act of 1993 to respond directly to these concerns. The Act was described by one senator as follows:

[This legislation is designed] to confront what I believe is one of the most threatening dangers confronting the nation-the tragedy of child abuse. The national extent of child abuse and neglect has grown to shocking epidemic proportions-more than 2 1/2 million reports of child abuse and neglect are made each year. Many abused children are victimized in their homes, but there is a large and growing number of children being victimized outside the home. Today, about 6 million preschool children are in a day care program for some or all of their day. By 1995, at least 8 million preschoolers will be in day care. This rapidly growing rise in children being cared for outside their homes must be met by an expanded national effort to protect these children. This is the goal of the National Child Protection Act ….

The idea behind the National Child Protection Act of 1993 is clear: We must do everything we can to detect convicted criminals before they are hired as child care workers, not after another tragedy takes place. … [T]his act will help build state and national systems necessary to prevent convicted criminals from being hired as child care workers. In 1991, similar systems in just six states identified more than 6,200 individuals convicted of serious criminal offenses-such as sex offenses, child abuse procedures for checking criminal records.

National Child Protection Act of 1993 – Key Provisions

The most important provision in the Act specifies:

A state may have in effect procedures (established by state statute or regulation) that require qualified entities designated by the state to contact an authorized agency of the state to request a nationwide [FBI] background check for the purpose of determining whether a provider has been convicted of a crime that bears upon the provider’s fitness to have responsibility for the safety and well-being of children, the elderly, or individuals with disabilities.

There are a number of important points here for church leaders to understand:

Criminal records checks are optional

The Act specifies that a state “may” enact statutes or regulations authorizing qualified entities to obtain nationwide background checks. States are not required to enact legislation giving youth-serving organizations the right to obtain nationwide background checks.

Qualified Entities

The Act permits “qualified entities” that are designated by the states to obtain nationwide criminal records checks. The Act defines a qualified entity as “a business or organization, whether public, private, for-profit, not-for-profit, or voluntary, that provides child care or child care placement services ….” There is little doubt that this definition will include churches that operate child care or preschool facilities. But does it also include churches that do not operate a school or preschool, but that offer Sunday School, nursery services, and other youth activities and programs involving supervision or instruction of minors? The Act does not address this question directly, but it does define the term “child care” to include “the provision of care, treatment, education, training, instruction, supervision, or recreation to children by persons having unsupervised access to a child.” It is likely that the operation of a Sunday School, nursery, and many if not most kinds of youth and children’s programs would constitute “the provision of education, training, instruction, supervision, or recreation to children.” As a result, it is entirely possible that a church will be considered to be a “qualified entity” even if it does not operate a school or a formal child care or preschool program.

Providers

It is also important to review the Act’s definition of the term provider, since a qualified entity may request an FBI criminal background check to determine if a provider has been convicted of a crime that bears upon that person’s fitness to have responsibility for the safety and well-being of children. The Act defines the term provider as a person who

(1) is employed by or volunteers with a qualified entity; owns or operates a qualified entity; or has or may have unsupervised access to a child to whom the qualified entity provides child care; and

(2) seeks to be employed by or volunteer with a qualified entity; seeks to own or operate a qualified entity; or seeks to have or may have unsupervised access to a child to whom the qualified entity provides child care

There is no question that this definition will include the vast majority of persons who work with minors in a church. Note also that the law defines a provider as someone who “has or may have unsupervised access to a child to whom the qualified entity provides child care.” This definition is so broad that it undoubtedly includes a much longer list of individuals, including custodians and spouses or friends of child care workers. Indeed, it is so broad that it could be interpreted to include any person who enters church property or attends any church activity. This would include church members and others who attend church services (no matter how infrequently), guests who attend weddings, visitors from out-of-town, and postal workers. Any of these persons “may have unsupervised access to a child to whom the qualified entity provides child care” and accordingly may meet the definition of the term provider. Clearly, this was not the intention of Congress, and it will be left for the courts to clarify the meaning of the term provider.

The Act makes it clear that the states specify which types of child care positions require criminal history checks. As noted above the Act contains a very broad definition of a child care “provider,” but the committee report explaining the Act emphasizes that

[not] all occupations and volunteer positions within that broad definition merit the time and expense of criminal history records checks. There are other means available to protect children from abuse, including the checking of prior employment history and character references and proper training and supervision of employees and volunteers. The committee expects that the states, in deciding which types or categories of positions require criminal history background checks, will consider the degree to which a particular position or child care activity offers opportunities to those who would abuse children. The committee expects that the states will find, for example, that positions involving long-term or ongoing contact with children in one-on-one situations merit criminal history record checks and that positions that involve infrequent direct contact or contact only in group settings do not merit such checks. The bill as amended leaves that decision to the respective states.

This language is critical, for it can be interpreted as establishing two levels of scrutiny in screening youth workers:

Level 1-Criminal Records Check

This level is required of those child care workers (providers) designated by state law. The committee report suggests that this level of screening be performed for “positions involving long-term or ongoing contact with children in one-on-one situations.”

level 2-Other Screening Methods

This level, according to the committee report, includes one or more of the following kinds of activities:
  • check prior employment history
  • check references
  • training
  • supervision

The committee report suggests that this level of screening be performed for “positions that involve infrequent direct contact or contact only in group settings.”

Procedures for checking criminal records

The Act establishes minimum requirements for state procedures for background checks. It clarifies that:

Such checks must be based on fingerprints.

A qualified entity may not request a background check of a provider unless the provider first provides a set of fingerprints and completes and signs a statement that (1) contains the name, address, and date of birth of the provider; (2) represents that the provider has not been convicted of a crime or, if the provider has been convicted of a crime, contains a description of the crime and the particulars of the conviction; (3) notifies the provider that the qualified entity may request a background check; (4) notifies the provider of the provider’s “due process” rights (described below); and (5) notifies the provider that prior to the completion of the background check the qualified entity may choose to deny the provider unsupervised access to a child to whom the qualified entity provides child care.

Providers must be informed by qualified entities that they have the right: (1) to obtain a copy of any background check report; and (2) to challenge the accuracy and completeness of any information contained in any such report and obtain a prompt determination as to the validity of such challenge before a final determination is made by the state agency regarding the provider’s suitability for working with children.

The designated state agency, upon receipt of a background check report lacking final disposition data (that is, no indication of how a criminal charge was resolved) shall conduct research in whatever state and local recordkeeping systems are available in order to obtain complete data.

The designated state agency shall make a determination whether the provider has been convicted of a crime that bears upon his or her fitness to have responsibility for the safety and well-being of children and shall convey that determination to the qualified entity.

The actual criminal record on a provider will not be conveyed to the qualified entity, but only an indication from the designated state agency whether the individual has been convicted of or is under pending indictment for a crime that bears upon his or her fitness to have responsibility for the safety and well-being of children.

National Child Protection Act of 1993 – other provisions of interest

Reporting child abuse crime information

The Act requires that states submit child abuse crime information to the national criminal history background check system maintained by the FBI. Previously, the states submitted criminal history information to the national system voluntarily.

The FBI has maintained for many years criminal history records submitted by state, local and federal agencies consisting of fingerprints, personal identification data (such as name, date of birth and physical descriptions) and reports of arrests and convictions. The records are used for a variety of criminal justice purposes as well as for background screening under certain conditions. Prior to the enactment of the National Child Protection Act, the FBI criminal history record system could be accessed for pre-employment purposes only if there was a state law requiring such a check. Many states already have such laws covering some types of positions that involve contact with children. For example, the FBI says that thirty-one states and the District of Columbia have enacted laws that require criminal history screening (through the FBI) for some category of child care providers. These laws, however, vary widely in coverage. The National Child Protection Act will encourage the remaining states to adopt similar laws requiring background checks through the national system, and to improve the quality of the criminal history records used for the checks.

The FBI national criminal history system is in the final stages of a major project that will link federal and state computers. This project, the “Integrated Automated Fingerprint Identification System” (or IAFIS) will allow the electronic transmission and searching of fingerprints for background screening purposes and the return of relevant records to requesting agencies via computer. This will greatly increase the speed of responses, possibly reducing the turn-around time from weeks or even months to a few hours.

Enforcement

The Act specifies that a state that does not enact legislation implementing the Act may lose some of its allocated funds under title I of the Omnibus Crime Control and Safe Streets Act of 1968.

Liability

The Act specifies that a child care provider “shall not be liable in an action for damages solely for failure to conduct a criminal background check on a [worker].” This is a very important provision. It means that a church cannot be sued solely as a result of its failure to conduct a criminal records check on a prospective youth worker. However, it is important to recognize that this provision does not insulate churches and other child care providers from all liability. For example, it is possible that churches could be sued for failing to use criminal records information properly, for disseminating such information to persons with no legitimate need to know about it, or for failing to screen those workers for whom you are not required by state law to obtain criminal records checks.

Use of criminal records information

The committee report accompanying the Act provides:

A law involving criminal record checks must balance the interests to be served by a check (protecting children from those who might abuse them) with the interests of the individual job applicant or volunteer and the interests of the states, which have a necessary role in the reporting and dissemination of criminal history records. Checks must be based on fingerprints in order to ensure accurate identification and avoid both false positive and false negative results. Legislation must take into account the poor quality of the criminal history records, many of which are incomplete. Legislation must guard against uncontrolled dissemination of criminal history records and their misuse or misinterpretation. Finally, the states should be given flexibility and discretion to structure their own laws.

Many of the records currently in the national criminal history record system are incomplete in that they indicate that a person was arrested for a particular crime but do not indicate the disposition of the charge. This poses a dilemma. On the one hand, it is grossly unfair to deny a person a job based on a mere arrest, since the accusation may have been false and the charges may have been dropped. On the other hand, an arrest may well have resulted in a conviction. To ignore incomplete records altogether would create a risk that persons who had been convicted would be allowed to assume positions from which they should be disqualified.

To address this dilemma, criminal history background screening is currently accomplished by providing the complete criminal history record in the FBI system to a state or local agency authorized by state law to receive such records. Employers do not receive the applicant’s criminal history record. This approach has a number of important benefits: (1) A governmental agency, reviewing numerous criminal history records, will be in a better position to interpret the records, which often use confusing code citations instead of plain English. (2) A governmental agency will be in a better position to obtain dispositions on the many arrest records that will be received lacking dispositions. A child care provider, for example, would not be in as good a position to make the contacts to courts or correctional authorities necessary to obtain disposition data. (3) Providing the records to a government agency ensures uniform standards with respect to whether convictions for a certain type of offense will be treated as disqualifying. (4) Control of the information, which is generally sensitive and not for general dissemination, is greater with governmental agencies. Keeping the rap sheets at the governmental level obviates the need for employers or volunteer organizations to develop confidentiality procedures for the receipt and storage of criminal history information. (5) Since the record subject should have an opportunity to challenge the accuracy of a record, it makes sense that a state agency handle those appeals. It would be a substantial burden on volunteer organizations to require them to resolve disputes over the accuracy of criminal history records. (6) Returning the record to the employer, such as the owner of a child care facility, would not protect against situations, which have arisen, where the operator of the child care program is himself or herself involved in child abuse. (7) Finally, it offers the best assurance that employment decisions will not be based on mere arrests, since otherwise employers could easily place an application from somebody with an arrest “at the bottom of the pile,” and never give the existence of the record as a reason.

These remarks underscore the importance of treating criminal records information as highly confidential material.

Fees

How much will it cost a church to obtain a criminal records check on a child care worker? The Act simply states that “in the case of a background check conducted with fingerprints on a person who volunteers with a qualified entity, the fees collected by authorized state agencies and the FBI may not exceed the fees otherwise established and collected for name checks.” The committee report accompanying the Act states: “Currently, state agencies and the FBI charge fees for record checks conducted with a fingerprint. The FBI fee is currently $23. The fee is used not only to pay the cost of each check but also to finance automation of the FBI’s records. Witnesses at the Subcommittee hearing noted that, with a separate state fee, the total can discourage volunteers and place financial burdens on voluntary organizations.”

Upgrading criminal records data

The Act requires the Attorney General to investigate the criminal history records system of each state and determine for each state a timetable by which the state should be able to provide child abuse crime records via computer through the national criminal history background check system. The law further provides:

The Attorney General shall require as a part of each state timetable that the state by not later than the date that is 3 years after the date of enactment of this Act, have in a computerized criminal history file at least 80 percent of the final dispositions that have been rendered in all identifiable child abuse crime cases in which there has been an event of activity within the last 5 years; continue to maintain a reporting rate of at least 80 percent for final dispositions in all identifiable child abuse crime cases in which there has been an event of activity within the preceding 5 years; and take steps to achieve 100 percent disposition reporting, including data quality audits and periodic notices to criminal justice agencies identifying records that lack final dispositions and requesting those dispositions.

The Volunteers for Children Act

The National Child Protection Act had two flaws that prevented it from accomplishing its noble objective. First, it required states to enact implementing legislation giving nonprofit youth-serving organizations access to FBI criminal records checks. Second, it did not require the states to enact such legislation. Unfortunately, only a few states did so. As a result, churches and other youth-serving organizations (Red Cross, Boy/Girl Scouts, Boys/Girls Clubs, Big Brother/Sister, Little League, Salvation Army, etc.) were unable to obtain FBI criminal records checks. They were left with the options of (1) doing no criminal records checks, (2) doing criminal records checks using county courthouse records, or, in some state (3) doing criminal records checks using state criminal records. The benefits of doing a national criminal records check were unavailable. This is the reason that the Volunteers for Children Act was enacted-to enable youth-serving organizations in all states to conduct FBI criminal records checks.

The Volunteers for Children Act remedies the flaws in the National Child Protection Act by amending it to read:

In the absence of state [implementing legislation] a qualified entity [designated by the state] may contact an authorized agency of the state to request nationwide criminal fingerprint background checks.

• Key point. A 1997 General Accounting Office (GAO) report concluded that “national fingerprint-based background checks may be the only effective way to readily identify the potentially worst abusers of children, that is the pedophiles who change their names and move from state to state to continue their sexually perverse patterns of behavior.”

Congressman Mark Foley, in remarks made before Congress regarding the Volunteers for Children Act, observed:

The Volunteers for Children Act is a very simple proposal. In 1993, this subcommittee helped enact into law the National Child Protection Act …. The law gave organizations such as schools, day care facilities and youth-serving volunteer organizations access to FBI fingerprint background checks to help ensure that they weren’t inadvertently hiring convicted child molesters to tend to their young charges. In doing this, the law recognized – as virtually every law enforcement official in the country does – that fingerprint-based background checks are the only way of conclusively identifying someone who has a criminal conviction. Name checks can be fooled by changing a name or a birth date or a Social Security number. But a fingerprint check cannot be fooled.

The only hitch to the National Child Protection Act was this: Under the law, a school or day care or volunteer organization can have access to the FBI fingerprint database – but only if the state in which they are located has enacted a state law, approved by the U.S. Attorney General, allowing that access. The good news is that, thanks to the National Child Protection Act, most states have responded by requiring either voluntary or mandatory fingerprint background checks for school teachers, school bus drivers and licensed day care providers who have direct contact with children. The bad news is that volunteer organizations have been left out. Only about six states have any significant provisions allowing youth-serving organizations access to fingerprint-based checks. So if convicted sexual predators want easy access to children, all they have to do is look respectable, be nice and offer to help in scouting events, in soccer coaching, in any volunteer setting involving children which is notlocated in those handful of states.

The Volunteers for Children Act is no panacea. It cannot help organizations identify child molesters who have not been convicted of an offense – and sadly, that seems to be the case in most instances, because many allegations of child molestation are either not reported or involve someone who is caught for the first time. But the Volunteers for Children Act can help organizations screen out the known predators – the hardcore ones who have been convicted and who are bent on preying on children again. …

[H]iring a sexual predator is every volunteer organization’s worst nightmare. For years, many of them – most prominently the Boys and Girls Clubs of America – have begged us to let them have access to the only tool that will prevent this nightmare from happening – at least where known convicted child predators are concerned. I urge this committee to support those pleas now by supporting the Volunteers for Children Act. The legislation does not usurp state laws. It merely allows volunteer organizations access to the FBI data – if they want that access – in the absence of state laws ….

In summary, the Volunteers for Children Act allows those organizations that are designated as “qualified entities” by state law to obtain nationwide criminal fingerprint background checks on those youth workers designated by state law as “providers” whether or not their state has enacted legislation authorizing such checks.

Conclusions

How will the Volunteers for Children Act affect churches and other religious organizations? Consider the following points:

1. State enabling legislation no longer required. It no longer matters that your state has failed to enact enabling legislation allowing churches to obtain FBI criminal records checks. The Volunteers for Children Act allows churches to obtain such checks if they meet the definition of a “qualified entity” under state law.

2. Churches as “qualified entities.” Even with the enactment of the Volunteers for Children Act, churches will not be able to conduct criminal records checks using FBI data unless they meet the definition of a “qualified entity” under state law. Will churches be designated as qualified entities? In most states, it is too soon to say. However, it is our prediction that many states will designate churches as qualified entities. Few organizations provide more child care and children’s programs than churches.

• Tip. How can you find out if churches meet the definition of a qualified entity in your state? Try calling your state legislators, a local attorney, the state attorney general, the governor’s office, or other youth-serving charities in your community (Big Brothers/Sisters, Boy/Girl Scouts, Boys/Girls Clubs, etc.).

On the whole, we believe most churches will benefit from being designated as a qualified entity under state law. Why? For several reasons, including the following:

An Effective Screening Tool

States that define the term “qualified entity” to include churches will provide churches with a simple, effective, and relatively inexpensive means of screening youth workers. By requesting a designated state agency to conduct a criminal records check of prospective workers, a church will be reducing significantly its risk of being sued for “negligence” if a worker molests a child on church premises or in the course of a church activity. Here’s why. In many cases, a church’s legal liability for acts of child molestation is based on the church’s alleged failure to adequately screen the offender. Lawyers refer to this as “negligent selection.” The church failed to exercise reasonable care in selecting those persons (whether compensated or volunteer) who will work with minors. Conducting adequate background checks on church workers can be a cumbersome and time-consuming process. Further, local law enforcement agencies often refuse to accommodate a church’s request to conduct a background check on church workers. Even when law enforcement agencies are willing to conduct a criminal records search, they generally will search only state or local records. An individual may have been convicted for child molestation on several occasions in a neighboring state but a criminal records check of your state and local records will turn up nothing. The person appears to be “safe.” On the other hand, if churches are designated qualified entities under state law, then they will have the right (and duty) to request that a state agency conduct a nationwide criminal records search. In time, these searches will be conducted by computer and will take very little time. Further, they will include the entire FBI national criminal history record system, so you will know if an applicant was convicted of a crime in another state.

The state determines a worker’s suitability

States that define the term “qualified entity” to include churches will enable churches to transfer to the state the sometimes difficult task of determining a worker’s suitability for working with minors. The National Child Protection Act states that the designated state agency “shall make a determination whether the provider has been convicted of a crime that bears upon an individual’s fitness to have responsibility for the safety and well-being of children and shall convey that determination to the qualified entity.” This is a very important provision. There are many cases in which the criminal record of an applicant for youth work is ambiguous or inconclusive. Consider the following examples.

Example 1. B applies for a position as a volunteer youth worker at a church. The church conducts a criminal records check using state records, and discovers that B was arrested and charged with child molestation three years ago, but the charges were dropped.

Example 2. Same facts as the previous example, except that B was acquitted by a jury.

Example 3. Same facts as example 1, except that B pled guilty to a lesser charge (disorderly conduct) and was given two years probation.

Example 4. G applies for a position as a volunteer youth worker at a church. The church conducts a criminal records check using state records, and discovers that G was convicted of child molestation 25 years ago, and served one year in prison. Does one conviction occurring 25 years ago render G unsuitable for working with minors today?

Example 5. Same facts as example 4, except that G was convicted two times for molesting children-the first occurred 25 years ago, and the second 10 years ago.

Example 6. Same facts as example 4, except that G insists that “they convicted an innocent man.”

Example 7. Same facts as example 4, except that G claims that he “got religion” while in prison, and no longer poses a risk of harm to children.

Example 8. J applies for a position as a volunteer youth worker at a church. The church conducts a criminal records check using county courthouse records, and discovers convictions for burglary and a drug crime. Do these convictions render J unfit for working with children?

Example 9. Same facts as example 6, except that J had an additional conviction for assault and battery.

Deciding whether or not any of these applicants should be used as volunteers in a church’s youth or children’s ministry can present church leaders with an agonizing decision, for it is not clear in many of these examples whether the applicant’s criminal background renders him or her unsuitable for working with children. Here is the good news-if a church is designated as a qualified entity under state law, it will not have to make these decisions! The state agency will make them for you. This provision obviously will decrease a church’s legal risk, and insulate church leaders from the responsibility for deciding whether a particular criminal record renders an applicant unsuitable.

Dealing with incomplete criminal records

Many churches have requested a criminal records check on a prospective youth worker only to be told that the record shows an arrest or prosecution for a criminal offense but does not show the final disposition of the case. This can be very frustrating. How should church leaders respond to this information? Does it disqualify the individual from working with minors in the church? What if there was no conviction? Isn’t everyone presumed to be innocent unless proven guilty? Could the church be sued for disqualifying someone who was never convicted of a crime? Again, many churches have agonized over these questions. The committee report accompanying the new law observes:

Many of the records currently in the national criminal history record system are incomplete in that they indicate that a person was arrested for a particular crime but do not indicate the disposition of the charge. This poses a dilemma. On the one hand, it is grossly unfair to deny a person a job based on a mere arrest, since the accusation may have been false and the charges may have been dropped. On the other hand, an arrest may well have resulted in a conviction. To ignore incomplete records altogether would create a risk that persons who had been convicted would be allowed to assume positions from which they should be disqualified.

The National Child Protection Act addresses these questions directly by requiring that a state agency that receives “a background check report lacking disposition data, shall conduct research in whatever state and local recordkeeping systems are available in order to obtain complete data.” What does this mean? If a criminal record is incomplete, it is the duty of the state agency that you asked to conduct the background check to find out what happened. This is not your responsibility. Once again, this provision decreases the potential liability of a qualified entity, and it is another reason why churches will benefit from such a designation.

3. Church workers as “providers”. If your state defines the term “qualified entity” to include churches, this means that your church will be required to request a nationwide criminal background check to determine if any provider has been convicted of a crime that bears upon that person’s fitness to have responsibility for the safety and well-being of children. Obviously, it is essential to know what workers within a church will be deemed providers. As noted above, the Act defines the term provider as a person who
  1. is employed by or volunteers with a qualified entity; owns or operates a qualified entity; or has or may have unsupervised access to a child to whom the qualified entity provides child care; and
  2. seeks to be employed by or volunteer with a qualified entity; seeks to own or operate a qualified entity; or seeks to have or may have unsupervised access to a child to whom the qualified entity provides child care
  3. There is no question that this definition will include the vast majority of persons who work with minors in most churches. The list includes Sunday School teachers, nursery workers, children’s choir directors, counselors, youth ministers, child care or preschool workers, parents’ day out workers, camp workers, and scouting leaders. It does not matter whether the individual is compensated or not. Note also that the law defines a provider as someone who “has or may have unsupervised access to a child to whom the qualified entity provides child care.” This could include a much longer list of individuals, including custodians, spouses or friends of child care workers, and virtually anyone who sets foot on church property or attends church activities.
  4. While the Act’s definition of a provider is broad, the committee report explaining the Act contains the following comment: “The bill includes a very broad definition of child care provider, but the committee does not believe that all occupations and volunteer positions within that broad definition merit the time and expense of criminal history records checks.” The committee report further clarifies that “[t]he bill as amended makes it clear that the states must specify by statute or regulation which types of child care positions require criminal history checks.” In other words, a state not only designates which organizations are qualified entities, but it also will designate which providers will require criminal records checks. The important point is that a state may decide that a criminal records check is only required for some kinds of providers. The committee report specifies:

  5. There are other means available to protect children from abuse, including the checking of prior employment history and character references and proper training and supervision of employees and volunteers. The committee expects that the states, in deciding which types or categories of positions require criminal history background checks, will consider the degree to which a particular position or child care activity offers opportunities to those who would abuse children. The committee expects that the states will find, for example, that positions involving long-term or ongoing contact with children in one-on-one situations merit criminal history record checks and that positions that involve infrequent direct contact or contact only in group settings do not merit such checks. The bill as amended leaves that decision to the respective states.

  6. What is the significance of this language? It can be interpreted as establishing the following two levels of scrutiny in screening youth workers:

  7. Level 1-criminal records check. This level is required of those child care workers (providers) designated by state law. The committee report suggests that this level of screening be performed for “positions involving long-term or ongoing contact with children in one-on-one situations.”

  8. Level 2-other screening methods. This level, according to the committee report, includes one or more of the following kinds of activities:

  9. check prior employment history (for example, check other churches or child care institutions in which the prospective worker has been employed to determine his or her suitability for working with minors)

  10. check references (contact references, including former churches and any organization in which the prospective worker has worked with children on a paid or volunteer basis, to determine his or her suitability for working with minors

  11. training

  12. supervision

  13. The committee report suggests that this level of screening be performed for “positions that involve infrequent direct contact or contact only in group settings.”
  14. There is no question that plaintiffs’ attorneys representing children who are abused or molested on church premises or during church activities will be pointing to the National Child Protection Act and the committee report, as well as the Volunteers for Children Act, as establishing a minimum duty of care in the screening of workers. Churches that continue to do nothing to screen youth workers are significantly increasing their risk of legal liability.

  15. • Example. First Church (a qualified entity under state law) is not required to obtain criminal records checks on occasional helpers in the church nursery or Sunday School. A volunteer worker (for whom a criminal records check was not available) molests a child. The church had no screening procedure in place for such workers. An attorney representing the victim claims that the church was guilty of negligent selection. The attorney points to the following language in the committee report to the National Child Protection Act of 1993: “There are other means available to protect children from abuse, including the checking of prior employment history and character references and proper training and supervision of employees and volunteers.” The attorney claims that such language recognizes a legal duty on the part of a church to screen workers (including those for whom a criminal records check is not required).

  16. And remember this-church board members can be personally liable for failing to take action, especially in light of this historic legislation. Failure by church board members to act may be deemed gross negligence or willful and wanton misconduct (eliminating any immunity that uncompensated board members may have under state law).
  17. 4. Church liability issues. The National Child Protection Act specifies that a qualified entity “shall not be liable in an action for damages solely for failure to conduct a criminal background check on a provider.” This presumably means that if your church is a qualified entity under state law, and state law permits criminal records checks to be obtained for church youth workers, your church cannot be legally liable for failing to conduct such a check on a particular worker. Failure to obtain such checks could be due to a church’s unfamiliarity with the law, or to neglect or inadvertence. Perhaps someone was hired before a criminal records check could be obtained. Or the person in charge of requesting criminal records checks was away temporarily on vacation or business and there was a need to hire youth workers immediately. There are many reasons why a church might fail to request a criminal records check on a worker. The important point is this-a church cannot be legally liable for a youth worker’s acts of sexual molestation solely on the basis of the church’s failure to request a criminal records check. This of course assumes that the church is a qualified entity under state law and that the worker was a provider for whom a criminal records check could have been obtained under state law.

  18. • Key point. The fact that a qualified entity “shall not be liable in an action for damages solely for failure to conduct a criminal background check on a provider” does not insulate churches and other child care providers from all liability. It is possible that churches could be sued for failing to use criminal records information properly, for improperly disseminating such information in a manner that could cause emotional distress or constitute defamation or invasion of privacy, or for failing to adequately screen those persons for whom a criminal records check is not required by state law.

  19. • Example. First Church (a qualified entity under state law) asks the designated state agency to conduct a nationwide criminal records check on Rob (a prospective youth worker) and is advised by the agency that Rob has been convicted of a crime that bears upon his fitness to have responsibility for the safety and well-being of children. However, the church goes ahead and uses Rob as a youth worker because of a lack of other volunteers. A few months later the church receives an allegation that Rob has molested a child. Can the church be sued? Absolutely. The fact that the new law specifies that qualified entities “shall not be liable in an action for damages solely for failure to conduct a criminal background check on a provider” does not insulate them from liability for negligently using criminal record information shared with them by the state.

  20. • Example. First Church (a qualified entity under state law) needs several workers in its nursery and children’s programs. The church is not aware that it is a qualified entity under state law or that it has the right to request nationwide background checks on designated providers. The church begins using Tim as a youth worker, but does not ask the designated state agency to conduct a nationwide criminal records check on him. A few months later the church receives an allegation that Tim has molested a child. Can the church be sued? Not because it failed to request a criminal records check, since the new law specifies that qualified entities “shall not be liable in an action for damages solely for failure to conduct a criminal background check on a provider.” However, it is possible that the church could be legally responsible for Tim’s acts on the basis of negligent selection or negligent supervision.

  21. • Example. Same facts as the previous example, except that the church was aware that it was a qualified entity and could have obtained a nationwide criminal records check on Tim. The fact that it intentionally failed to obtain such a check available to it under the National Child Protection Act cannot by itself serve as a basis for legal liability. However, the Act does not limit the victim from suing the church on the basis of negligent selection. As long as the lawsuit does not attempt to prove negligent selection by referring to the church’s failure to request a nationwide criminal records check, it can proceed. To illustrate, negligent selection may be proven by the following evidence: (1) the church failed to have Tim complete an application; (2) the church failed to interview Tim; (3) the church failed to check references.

  22. Recall that qualified entities are not required to request criminal records checks on all providers, but rather only on those providers who are designated by state law. What if a person in your church molests a child and this person was a provider but not among the list of providers required to have criminal records checks under state law? The committee report accompanying the new law simply notes that “[t]here are other means available to protect children from abuse, including the checking of prior employment history and character references and proper training and supervision of employees and volunteers.”
  23. 5. Should churches that request nationwide criminal records checks do additional screening? Many church leaders soon will be asking, “If our church is a qualified entity under state law, do we need to do any additional screening of youth workers or is the nationwide criminal records search enough”? It is our opinion that all churches should conduct additional screening procedures for anyone who will have access to minors on church premises or during church activities. These procedures include, at a minimum, a “6-month rule” (don’t use a person who has not been a member of your church for at least 6 months), application forms, reference checks, an educational program for church staff, and adequate supervision. We base this conclusion on the following factors:
  24. Not all of the persons who have contact with minors in your church will be designated by state law as “providers” for whom a criminal records check must be obtained.
  25. Many child molesters have no history of criminal convictions.
  26. Many child molesters plead guilty to lesser charges giving little if any indication of their risk to children in your church.
  27. Few churches will be able to request a criminal records check on every designated provider. The person responsible for requesting these checks may be temporarily absent (away on vacation or business) at a time when new youth workers are needed. Or, in larger churches, there may be so many workers that some are inadvertently omitted from a request for criminal records checks. Other workers may refuse to provide you with their fingerprints (this will be required in order for your to request a criminal records search).
  28. Adopting additional screening procedures imposes minimal inconvenience on a church, and reduces substantially the possibility that a church will be sued as a result of an incident of sexual molestation. Many attorneys would consider suing a church for negligence if a church worker molests a child-even if the church conducted a criminal records search and was advised by a state agency that the worker had no history of criminal convictions that would render him or her unfit for working with minors. The argument in such a case would be that there are so many limitations on the effectiveness of criminal records searches (as summarized above) that it is negligent for a church to do nothing more. Churches that conduct screening procedures in addition to the criminal records check reduce substantially the likelihood of a lawsuit. This protects the church from potential financial liability and negative publicity in the local media. Churches whose liability insurance policies exclude any coverage for sexual misconduct, or reduce the policy limits, definitely should adopt additional screening procedures.
  29. Applying the same screening procedures to all persons who will have contact with minors will avoid apparent “discriminatory” treatment. If you only require application forms and other screening procedures for those workers for whom you are not required to obtain a criminal records check under state law, then these persons may object to being singled out for intrusive procedures that are not applied to the very persons who present the highest risk (those for whom criminal records checks are required). Applying your screening procedures to all workers will avoid such apparent “double standards” and will be perceived by your workers to be more fair.
  30. All of the above considerations assume that your state will include churches within the definition of a qualified entity. This will not necessarily be the case in every state. If your state does not include churches within the definition of a qualified entity, then you will not have access to the FBI criminal records database and you must implement your own screening program.
  31. A related question is whether a church avoids legal liability for negligent selection simply by requesting a criminal records check and being told by a state agency that there is no apparent reason why a prospective worker cannot be used. To illustrate, assume that a church asks a state agency to conduct a criminal records check on a prospective youth worker, and is later informed by the agency that the worker has not been convicted of a crime that bears upon his or her fitness to have responsibility for the safety and well-being of children. Can the church safely assume that it can use the worker without conducting any additional screening? The new law does not address this question. Obviously, the mere fact that someone does not have a record of criminal convictions does not mean that he or she poses no risk of harm to minors. Many child molesters have never been convicted of a crime, and so a “clean record” is no guarantee of safety. It is possible that a court could find a church legally liable for a worker’s act of child molestation even though a criminal records search revealed no criminal history, if the church did nothing else to determine the person’s suitability for working with minors. For this reason, we recommend that churches continue to screen workers even if they are qualified entities under state law and are permitted to request criminal background checks on youth workers.
  32. Also note that even if the courts of your state determine that churches cannot be liable on the basis of negligent selection for using a worker with no history of criminal convictions, it is possible for churches to be liable for a worker’s act of child molestation on the basis of “negligent supervision.” Negligent supervision is a legal theory that imposes liability on an institution or employer for failing to exercise reasonable care in the supervision of its workers (whether volunteer or paid).

  33. • Example. First Church (a qualified entity under state law) asks the designated state agency to conduct a criminal records check on Don (a prospective youth worker) and is advised by the agency that Don has never been convicted of a crime that bears upon his fitness to have responsibility for the safety and well-being of children. Based entirely on this information, the church decides to use Don as a youth worker. A few months later the church receives an allegation that Don has molested a child. Can the church be sued? The National Child Protection Act does not answer this question. It is possible that a civil court would conclude that the church exercised “reasonable care” by requesting a criminal records check on Don and therefore is not guilty of “negligent selection.” However, it is also possible that a civil court may conclude that a church must do more than request a criminal records check and be informed that a worker has no history of criminal convictions. Until the courts clarify this issue in your state the safest course is to use additional screening procedures besides requesting a criminal records check (such as an application form, interview, and reference checks). Remember, the fact that a person has no history of criminal convictions for sex offenses does not mean that he or she is “safe.” Many child molesters have never been convicted of a crime. Also, remember that your church will be accused of “negligence” in selecting Don. There will be many plaintiffs’ attorneys who will allege that a church is negligent for not conducting screening procedures in addition to the criminal records check (for the reasons summarized above). To avoid this accusation, and to decrease significantly the likelihood that an attorney would sue your church, additional screening procedures are recommended.

  34. • Example. Same facts as the previous example. Even if the state courts determine that First Church is not guilty of negligent selection for using a worker without any screening other than the nationwide criminal records check permitted by the National Child Protection Act, it is possible for the church to be liable for a child’s injuries on the basis of negligent supervision. Negligent supervision is a legal theory that imposes liability on organizations for injuries caused by their failure to adequately supervise workers.

  35. It is also important to review the potential liability of churches if they are not designated as qualified entities under state law. If your state does not define the term qualified entity to include churches, then you will not be able to request criminal records checks on youth workers and you will need to implement an effective screening program to reduce the likelihood of child molestation and to reduce your legal risks and potential liability. This is especially true if your church liability insurance policy excludes any coverage for sexual misconduct, or reduces the policy limits in such cases.

  36. • Example. First Church is not a qualified entity under state law, and accordingly it is unable to obtain a nationwide criminal records check on prospective youth workers under the National Child Protection Act. The church must implement a program for screening youth workers. Such a program should include, at a minimum, a “6-month rule” (don’t use a person who has not been a member of your church for at least 6 months), application forms for all workers, interviews, reference checks, an educational program for church staff, and adequate supervision. In some communities, churches also may be able to access local or state criminal databases through a local law enforcement agency.

  37. 5. Options. Here is a checklist of options that are available to church leaders:
  38. (1) Determine if your state defines the term qualified entity to include churches
  39. To find out if your state has defined qualified entities to include churches, call your state legislators, a local attorney, the state attorney general, the governor’s office, child welfare agency, or other youth-serving charities in your community (Big Brothers/Sisters, Boy/Girl Scouts, Boys/Girls Clubs, etc.).
  40. (2) Your state defines the term qualified entity to include churches
  41. If churches are qualified entities under state law, then you can request a nationwide criminal records check on those child care workers (“providers”) designated by state law. This may not include all persons who work with minors in your church. You will need to determine which child care workers are designated and which are not. Consider the following points:
  42. Nationwide criminal records checks are obtained as follows: (1) The employee or volunteer completes a form authorizing the request, and containing the required information summarized previously in this article. The state agency should have acceptable forms for you to use. (2) Obtain ten sets of fingerprints on the employee or volunteer. (3) Submit the application, with fingerprints, and the applicable fee, to the designated state agency.
  43. You can obtain nationwide criminal records checks on all persons who meet the definition of a provider. This certainly will reduce a church’s risk of liability based on negligent selection, especially if other screening tools (i.e., application, interview, reference checks) are used. But, such checks are expensive, require weeks or months to process, and are highly intrusive (requiring ten sets of fingerprints). As a result, many churches will elect not to use them as a routine screening tool.
  44. You can obtain nationwide criminal records checks in selected cases. For example, such checks are ideal for persons with inconclusive criminal records, or with prior convictions for non-violent crimes. As noted earlier in this article, church leaders often agonize over how to treat such persons. The National Child Protection Act transfers that decision to the designated state agency which processes the criminal records check request. The church is simply advised whether or not the individual is suitable for working with children.
  45. If your church elects not to conduct nationwide criminal records checks on all providers, then it is imperative that it implement other screening procedures to demonstrate that it is using reasonable care in the selection of employees and volunteers. The degree of screening depends on the nature of the position. The committee report to the National Child Protection Act contains useful guidance. As noted above, the report distinguishes between “level 1” and “level 2” screening. Level 1 screening requires a criminal records check. This level applies to “positions involving long-term or ongoing contact with children in one-on-one situations.” Level 2 screening applies to “positions that involve infrequent direct contact [with minors] or contact only in group settings.” This level includes one or more of the following kinds of activities: (1) check prior employment history for applicants for employment; (2) check references; (3) training; and (4) supervision.
  46. It is important to note that the committee report concluded that criminal records checks are a necessary screening tool for positions involving long-term or ongoing contact with children in one-on-one situations (“level 1” positions). Churches that elect not to obtain nationwide criminal records checks on providers under the National Child Protection Act must recognize that: (1) The committee report contains a strong endorsement of criminal records checks for “level 1” positions. It states that “positions involving long-term or ongoing contact with children in one-on-one situations merit criminal history record checks.” (2) A 1997 General Accounting Office report concluded that “national fingerprint-based background checks may be the only effective way to readily identify the potentially worst abusers of children, that is the pedophiles who change their names and move from state to state to continue their sexually perverse patterns of behavior.” (3) If a church elects not to obtain nationwide criminal records checks on some or all providers, it must be able to demonstrate that it exercised reasonable care in the selection of those providers. At a minimum, this will include application forms, interviews, and reference checks. Churches also should consider conducting state or county criminal records checks (which often are cheaper, faster, and less intrusive), especially for persons in “level 1” positions. Remember, the committee report to the National Child Protection Act concludes that such positions “merit criminal history record checks.”
  47. You must implement screening procedures for persons who do not meet your state’s definition of a “provider.”
  48. (3) Your state does not define the term qualified entity to include churches
  49. If you are not a qualified entity under state law, then you will need to implement other means of screening persons who will have access to minors in your church. These will include applications, interviews, reference checks, and adequate supervision. You also should consider conducting state or county criminal records checks, at least on some workers in higher risk positions. It is worth noting again that the committee report to the National Child Protection Act concludes that “level 1” positions “merit criminal history record checks.”
  50. Comparing Criminal Records Check Options
  51. Type of criminal records checkAdvantagesDisadvantages
  52. FBI nationwide checks covers criminal records in all 50 states
    such checks provide churches with a defense to negligent selection claims
    the designated state agency through which such checks are obtained determines an applicant’s suitability for working with minors based on the results of the criminal records search records often incomplete
    expensive, especially if several persons are screened
    requires 10 sets of fingerprints per applicant
    may require weeks to process
    only available to churches if they have been designated as “qualified entities” by state law state checks covers an entire state
    such checks provide churches with a defense to negligent selection claims records often incomplete
    may not be available to churches
    may be expensive, especially if several persons are screened
    may require fingerprints
    may require weeks to process
    limited to criminal records in one state county checks very accurate
    such checks provide churches with a defense to negligent selection claims
    no fingerprints required
    very fast (results available in hours or days) may be expensive, especially if several persons are screened none no cost
    no fingerprints increased risk of liability based on negligent selection (this risk can be reduced in the case of applicants for volunteer positions involving contact with minors, or any paid staff position, by using applications and interviews, obtaining references from other organizations in which an applicant has worked with minors, and obtaining references from persons who are familiar with the applicant)
Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

This content is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Due to the nature of the U.S. legal system, laws and regulations constantly change. The editors encourage readers to carefully search the site for all content related to the topic of interest and consult qualified local counsel to verify the status of specific statutes, laws, regulations, and precedential court holdings.

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