Each summer, thousands of volunteers join with employees at youth-centered nonprofit organizations – running sports camps, leading Vacation Bible School programs, and providing childcare. Throughout the rest of the year, nonprofits regularly rely on both paid staff and volunteers as the bedrock of their religious, educational, and charitable programs. Before serving in these positions, many applicants consent to background checks – perhaps by signing an application with only a sentence-long disclosure or by checking a box to mark their assent. Although these background checks may appear to be simply another administrative step, they are an important element for nonprofits to minimize liability and to make wise hiring decisions. What background checks are warranted, and how should a nonprofit proceed in carrying them out? This article explains key distinctions and provides important guidance for handling background checks.
Criminal Background Checks
Criminal background checks are integral for hiring employees and selecting volunteers to work with children or other vulnerable populations. An organization may be held liable under a "negligent hiring" or "negligent retention" legal theory for harm resulting from a person for whom a criminal background check was warranted but not performed. Accordingly, nonprofit leaders should consider conducting background checks on a broad scope. Background checks may vary in terms of time (how many years to check), geography (which states to check, federal checks), and cost, so organizations should follow discernible “industry standard” guidelines as much as possible.
Note too that certain legal constraints may accompany criminal information. For example, in many states (including Illinois), employers may not make hiring decisions on the basis of an applicant’s arrest record. Accordingly, while employers may ask and use applicant information about convictions, they should avoid seeking information regarding arrests. Further, the Equal Employment Opportunity Commission strongly advises employers to avoid the use of a bright-line policy for applicants with criminal convictions in their published guidance on criminal background checks.
Credit Reference Checks
Credit reference checks (also known as consumer reports) include any information relating to a consumer’s creditworthiness or credit standing that may be used for employment-related purposes. In Illinois, the Employee Credit Privacy Act strictly regulates work circumstances in which a credit check may be performed, limiting them to employers such as banks, credit unions, insurance companies, and law enforcement agencies. Even in states without such stringent statutes, organizations should only perform credit checks when the results are connected to the employee’s field of work (e.g., a credit check for a CFO position would be appropriate).
Credit checks require employers to provide a disclosure to applicants and to obtain their authorization. Employers should prepare documents separate from the employment application, including a disclosure statement expressing that the employer may conduct an investigative consumer report and an authorization document to be signed and dated by the applicant.
Employers may wish to obtain consent from their employees and applicants even if such consent is not legally required. First, consent provides the applicant with an opportunity to self-disclose, perhaps providing more information than would be obtained through the check itself. Second, obtaining consent upfront could be helpful in the event an employee later objects for reasons such as invasion of privacy. Third, when an employer gets consent for the background check, it may also get a consent and waiver for reference checking. (E.g., "I hereby give my consent for [employer] to obtain a criminal background check and to contact the references I have provided. In exchange for [employer]’s consideration of me for potential employment, I release [employer], its agents, my listed references, and their agents from any and all liability related to disclosure of such information.") Such a waiver also may help the references to be more forthright in providing information.
Background check information should always be kept confidential and be kept in a locked or otherwise secure location with only limited access by those to whom such access is necessary. Such measures are important for protecting individuals’ privacy and avoiding potential organizational liability.
Background checks may reveal adverse information. It thus may be appropriate to follow up with the employee, particularly to let the employee explain his or her side of the story. Certain information warrants denial of employment. For example, a conviction for sexual molestation would disqualify a person entirely from working with vulnerable persons. On the other hand, some offenses may warrant further investigation of additional information such as the applicant’s subsequent behavior, his or her reputation, and the offense’s relation to the proposed work.
In the case of credit checks, employers are obligated to disclose when information from a credit check adversely impacts an applicant/employee’s employment status. Employers should also provide the applicant or employee with a copy of the report.