Catch for Us the Foxes

CHATSWORTH, Calif. -- Every year, an estimated 2.4 million children are physically abused. In the last few years, the abuse of children by church staff has earned headline attention, making the public more and more aware of the need to background check.

Today, background checks are no longer a luxury -- they are a necessity. Churches are, and should be, more cautious than ever.

“Churches should set a standard of how we safely protect our children," says Tim Winters, pastor at Shepherd of the Hills Church in California. "We're not only accountable to parents but to God for providing a safe environment.”

Job applicants, existing staff members, volunteers and independent contractors must be asked to submit to a background check. For some positions, screening is required by federal or state law.

Today, security and safety cautious churches have opened their eyes and checkbook after weighing the inherent risks in not performing pre-employment background checks.

According to 2002 statistics from the U.S. Department of Justice, one in every 32 adults was on probation, in jail/prison or on parole at year's end. Further, 67.5 percent of prisoners were rearrested for a new offence within three years from release from prison (almost exclusive to felonies or serious misdemeanors).

Statistics from InfoLink Screening Services Inc., a national background screening company, disclose that in 2003, 8.1 percent of criminal searches revealed a criminal conviction; 3.2 percent of drug tests were positive; 23 percent of those checked had something negative on their credit report; and about 37.2 percent had negative driving records, including DUIs.

In addition, searches identified job applicants who were convicted of federal crimes, were listed as registered sexual offenders, and had licensing problems. Also, more than 17 percent of the past employment verifications InfoLink performed were negative or had discrepancies from what was reported by applicants on their application.

In the last quarter of 2003, 14.29 percent of the searches performed by InfoLink for one church client were found to have criminal convictions, while the frequency of motor vehicle “hits” was 46.88 percent. These were people who knew a background check was going to be performed and authorized it in writing. Some of the crimes revealed include:

Possession of a control substance
Resisting arrest
Prostitution
Possession/manufacture/sale of a dangerous weapon
Credit card impersonation
Force/inflict injury
Grand theft
Failure to appear in court
Drunk driving

Further, for another church who requested credit reports, 26 percent of those reports had negative findings, including a person who was using a social security number that wasn’t theirs.

Sometimes the discrepancies found are not serious; more serious is the fact that the applicant lied to the church. By being proactive, church staff and members sleep better knowing that everyone is protected.

Churches who fail to take action to control abusive, belligerent or combative staff often find themselves embroiled in litigation. Injured staff members and congregants have sued for negligent hiring or the negligent retention of the staff member who caused their injuries.

In his article, Negligent Selection and Child sexual Abuse in the Church (copyright 2002), Attorney Richard Hammar says proper screening helps reduce the risk of negligent selection. Suits can allege that the church failed to accurately check references, criminal records or general background information that could have shown the staff member’s likelihood for criminal or tortuous behavior.

Negligent hiring and negligent retention theories of liability have been recognized in a number of states, and lawsuits are on the rise. If a staff member’s actions hurt someone, the church might be liable.

The threat of liability gives churches reason to be cautious in checking applicants’ past. A bad hiring decision can wreak havoc on budget and reputation, as well as ruin the career of the hiring official.

Churches no longer feel secure in relying on their instinct as a basis to hire. Court decisions make it clear they have an obligation to take precautions when hiring staff.

Although we don’t see as many cases as in the past because of out-of-court settlements, the phenomenon of negligent hiring suits is not going to go away, and all churches must take steps to guard against the substantial liability that these suits can engender.

News events about child abuse or abductions have resulted in laws in many states requiring background screening on anyone who works with children. Other news about disgruntled workers injuring or killing co-workers have made staff members and managers suspicious of anyone who seems “not normal."

Heightened security after Sept. 11 has created an awareness and fear of vulnerability.

Unfortunately, an occurrence of violence in the workplace, a theft, suspicion of workers’ compensation fraud or a sexual harassment complaint might be the catalyst for a church’s change in philosophy as to how they hire. Sadly, and often, these are costly eye openers.

Fortunately, the cost of performing background checks has decreased dramatically in recent years. And, according to Pastor Winters, once you have screened the bulk of your volunteers, your expenses lessen each year as your volunteers keep repeating their service to the church.

What To Look For

Social Security and Criminal Records -- The first two checks a church should seek are a social security trace report and a criminal conviction inquiry at the local county courts. The trace report helps identify the subject, provides other names used by them and past addresses which might be used as locations to check criminal history. Criminal history checks report convictions, current arrest warrants and if someone is out on bail on their own recognizance pending trial.

Churches might generally only use conviction information when making a hiring decision. Certain states have industry exceptions regarding arrest information. For example, in California, churches can inquire about arrests under certain circumstances; however, they must be extremely cautious if obtaining or even seeking arrest information.

Many state labor codes and state fair employment guidelines limit the content of an employment background check. The practice of using a criminal conviction as one of the selection criteria for employment, even though neutral on its face, might violate Title VII because studies indicate that minorities are convicted more frequently than non-minorities. The EEOC and U.S. courts have held that an employer may not lawfully deny employment to an applicant (or discharge a staff member) merely because of a criminal conviction unless the conviction can be shown to be related to the job for which the applicant is applying.

The EEOC and the U.S. courts require the examination of several factors in determining whether a specific individual who has been convicted may be disqualified for employment in a particular position. Consideration should be given to factors such as the age of the individual when the conviction occurred, the length of time since the conviction, and whether the individual is rehabilitated.

The most important factor and the most often-cited by the courts is the relationship of the conviction to the specific position the applicant is seeking. Consequently, churches should make a separate evaluation for each person who has been convicted of a crime against the requirements of the specific job.

In December 1998, a change to the FCRA made criminal convictions reportable indefinitely. But, twelve states still follow the seven-year rule for reporting criminal convictions. Those states are California, Colorado, Kansas, Maryland, Maine, Montana, Nevada, New Hampshire, New Mexico, New York, Texas and Washington.

Along with a Social Security Trace and Criminal History check, other services Churches should consider requesting include:

Driving Records -- Although the job might not require driving, a motor vehicle report can provide great insight into a person’s character. Reports with DUIs or drug possession, many tickets or accidents, a current warrant, or where the person failed to appear in court might be a precursor of poor on-the-job performance.

Further, individuals with conviction records have learned to provide incorrect dates of birth to churches on their applications. As date of birth is the primary identifier in court records, reviews of criminal files or searches of databases without a correct date of birth are disastrous! By requesting a motor vehicle report, the researcher obtains the correct date of birth from the state department of motor vehicles and might learn that the date of birth that the applicant provided does not match the drivers’ license number. For this reason a driving record report should be run with every search.

Credit Reports -- Employment credit reports should only be sought where the person could affect the church financially. When staff members are handling cash, have credit cards, have access to accounting records or can commit the church financially, credit reports are excellent tools. Bankruptcies are public record; however, churches cannot discriminate against applicants because they have filed for bankruptcy. (11 USC §525).

Civil Records -- Although it might be nice to know if someone sued their previous employer, civil lawsuits are generally not job related and caution should be advised before seeking this information. A church should only seek civil information if they are confident that discovery of lawsuit information could relate to the job position applied for.

That being said, a civil search might reveal the issuance of a restraining order, which could indicate a propensity for violence. Civil records are searched in the local courts, but also might be federal and searched in the federal district court.

The National Criminal Database Index -- Recently, databases purporting to be national criminal files have become available. Various companies have been successful in purchasing bulk files. Purchasers of this information must be cautious and realize that the information is not national, current or always accurate.

This search is an excellent method to identify records in counties the subject visited in but never lived or counties where the subject lived too long ago to be reported on a social security trace report. This search should never replace an accurate court search of all past counties of residence.

The databases are comprised of several state correctional institution lists, sexual offender lists, state repository lists and some county jurisdiction information. Not all states or counties offer bulk data for sale; therefore, records will never be a complete national file like the FBI’s National Crime Information Center (NCIC), which is restricted to only duly authorized criminal justice agencies and is not accessible by churches or consumer reporting agencies.

Studies have proven that databases do not have complete or accurate records and are paramount to throwing money into a bonfire unless used only as an additional search. As an additional search, they are valuable and strongly recommended.

Additional Searches -- Churches should always contact past churches for verification and job performance information and, where applicable, confirm license and education.

Searching the state’s sex offender list is critical. Statistics reveal there are 386,000 registered sexual offenders in the United States, most of whom are child molesters. Often, the fact that the person is a registered sex offender isn’t revealed in a criminal search as the crime didn’t occur in the county searched. Under Megan’s law, most states maintain a database that may be searched.

Finally, if budget permits, check state repository records (if available), federal criminal records and incarceration records.

Drug Testing -- According to some estimates, 17 percent of the American population are substance abusers. Since such activities costs employers a national average of $7,000 per company per year (due to absenteeism, accidents, theft, and lawsuits), we strongly recommended drug testing be performed on all staff applicants.

Churches who drug test enjoy reduced absenteeism and turnover, along with increased productivity and fewer accidents.

Further, drug testing sends a message to congregants and throughout the youth ministries that taking drugs is not just against the law but can prevent a person the ability of obtaining employment.

What You Can Do -- for Free!

There are a number of things that you can do now, for free, to protect your church from hiring a criminal.

1) Place prominent signs around your church that states you conduct background checks and drug testing. Displaying such a sign is similar to the security alarm sign you might have at your home or office that deters unlawful individuals from entering.

Promoting the fact that you pre-screen new hires and volunteers is a great way to deter unwanted individuals from applying. Many individuals with criminal convictions and falsified resumes -- though not all -- will not waste your time because they know they will be screened out in the hiring process.

An added benefit to placing signs is that your staff members and the congregants feel safe on church premises.

2) Place a notice on your website that you perform background checks and drug testing. Clients of InfoLink who have placed such a link on their sites have found it a very useful way to discourage undesirable applicants from applying. Applicants who visit your website for employment information will see tyou promote a safe working environment -- an excellent benefit!

3) Create ominous disclosure and authorization forms requiring authorization for a background check and drug testing. Hand it to every applicant with the employment/volunteer application. Create thorough documents that encompass all federal and state laws. If the applicant has something to hide, your documents will make unwanted applicants think twice about completing the application process.

4) Advise all staff members that your cperforms background checks, and obtain authorization in advance. Write a background screening policy and distribute it to all staff members. In it, list the required searches for each job or volunteer position inferring that promotions are based on the satisfactory response from a background check.

It is important that staff members know that you conduct background checks and “might” perform post-hire searches.

5) Insist that any temporary employment agency you use performs background checks, and get a copy of the background screening report prior to employing any temp. It is very common for applicant’s with criminal records to work through temporary agencies since many agencies do not conduct background checks. It is important that you protect your church by having the agency screen the candidates they send you so you can have piece of mind.

6) Require your vendors and independent contractors who come on church premises to first background check their employees. This requirement costs you nothing and protects your staff members, congregants and their children.

Create a policy indicating what they should check. Insist that your vendor sign off that each background check was completed and reviewed before they sent the person to your location.

7) Have a complete employment application for staff and a separate one for volunteers that asks all of the questions you can legally ask. Place a large notice at the top of your applications that you perform background checks and drug testing. Use your application form as a deterrent, reminding applicants that they will undergo a background check.

The federal Equal Employment Opportunities Commission (EEOC) has listed several questions that can be legally asked prior to making an offer of employment. Churches should include all relevant questions on their applications.

Barry Nadell is the president and co-founder of InfoLink Screening Services, Inc., a national provider of employment background screening, drug testing programs, drug awareness training, behavioral assessments, employment physicals and online employment applications. Nadell is a member of the American Society of Industrial Security, the Association of Threat Assessment Professionals, the Society for Human Resource Management and the American Management Association among others, and has addressed the national conventions of these organizations and others on topics relating to background screening. For more information, call 800.990.HIRE (4473) ext. 1324, e-mail info@infolinkscreening.com, or visit www.infolinkscreening.com. Order the Perfect Application at www.greathire.com.

NOTE:The information in this article is not intended, nor should be construed, to provide legal advice of any kind. The author accepts no liability whatsoever for any information contained within. Before making any changes, churches should consult legal counsel.