When it comes to nonprofit programs involving children, worker screening is crucial. Both paid staff and volunteers should be screened to improve safety and reduce risk. Nonprofits can then make informed decisions about whether to allow persons to work with children – or not. The screening process can reveal red flags, which may warrant further steps such as additional investigation, follow-up questions for the worker applicant, and other careful oversight. Here’s what to know about evaluating negative screening results for potential staff and volunteers who may work with children.
Background Basics
If a nonprofit’s program activities involve children, child safety standards are needed. These standards should include the following elements: (1) a board-approved written child protection policy outlined with responsible governance; (2) childcare worker screening requirements; (3) training for all approved childcare workers; (4) effective supervision and other operational measures; and (5) appropriate protocols to address safety issues that may arise. Such standards should comply with applicable legal requirements (e.g., mandated reporting laws) as well as best practices for child safety.[1]
The screening process should apply to all persons who may be involved with caring for children, whether in full-time childcare, weekend ministry activities, regular or occasional activities with children, for paid or unpaid service. If a person provides care to children who are participating in a nonprofit’s program activity, that person should be screened.
The Screening Process
An effective screening process should include the following core elements: (a) a written application with personal identifying information and authorization of the screening process; (b) a criminal background check from a reputable provider (for adults, since minors’ criminal records are not publicly available); (c) reference checks, preferably both professional and personal, based on information provided by the applicant; (d) an interview with the applicant; and (e) a waiting period during which all such information may be gathered and evaluated.[2]
Screening is not a foolproof method for determining who should and should not be allowed to work with children. But this vetting process should provide nonprofit leaders with valuable insight into a person’s background and suitability for working with children, especially if the screening process reveals significant problems such as prior unlawful activity or other highly concerning issues. Notably, a waiting period provides a nonprofit with increased opportunities for gaining insights into a prospective worker’s character, trustworthiness, behaviors, and other tendencies that could pose child safety risk.
Many workers will pass through the screening process with no warning flags or other issues, and wonderfully so! But the screening process can also reveal a negative result or at least concerning information. What then?
Negative Screening Evaluation
Negative screening results may be revealed through completed applications, background checks, references, applicant interviews, and other sources: (a) evidence of violent conduct by the applicant, particularly involving children; (b) other offenses against children, such as neglect; (c) arrests or convictions for non-violent crimes; (d) arrests, convictions, or other allegations involving domestic violence, such as a restraining order; (e) a DUI or other vehicular criminal offense involving abuse of alcohol or drugs; (f) other evidence of drug and/or alcohol addiction; (g) concerning information about weapons possession and use; and (h) information reflecting poor judgment about appropriate child safety. This screening list should also include sexual abuse of minors, which should be automatically disqualifying. Any registered or otherwise known sex offender should similarly be disqualified.
These types of negative screening results should trigger follow-up steps. Never be complacent – review the written application, background checks, and other screening materials fully and identify whether additional measures are warranted.[3] Clearly disqualifying information means the person is not allowed to work with children, and they should be informed as such. Questionable information means that additional steps should be taken to further evaluate an applicant. Here are some recommended measures and related questions.
1. Verify the screening results. Are they accurate (e.g., not mistaken identity or other defects)? Evaluate available records and documentation more extensively.
2. Check further with the applicant. Find out what happened, why, and what were the background circumstances of the concerning information. For example, consider if the applicant had a criminal conviction ten years ago for illegally possessing a firearm. What is the applicant’s explanation? Does it make sense? To what extent does the passage of time make a difference (i.e., is this information still concerning, or has the applicant since demonstrated appropriate responsibility)? Similarly for a DUI conviction – how long ago, and does it indicate that the person still poses any safety risk for others?
3. Evaluate the applicant’s current suitability for working with children. For example, if the applicant had a prior DUI conviction, has he or she been involved with Alcoholics Anonymous or other treatment? If the nonprofit is a religious organization, it may be helpful too to consider evidence of the applicant’s expression of faith, current capability to live in adherence with religious and moral standards, evidence of contrition and related restorative efforts, or rehabilitation.
4. Check further with the applicant’s references, asking for additional references to appropriately follow up on any concerning information.
5. Keep all such screening information confidential. Such sensitive matters warrant due concern for privacy, with accompanying record retention protocols. Information should only be shared among those persons who need to know it for purposes of the childcare screening application.
6. Consider obtaining professional guidance (i.e., legal, insurance, child safety consultants), particularly to better understand the concerning information’s severity, safety implications, and related risk management aspects.
This list is neither comprehensive nor required in every case, and situations may vary widely.
Risk Assessment
A screening flag need not be an automatic disqualifying factor for childcare workers. Nonprofit leaders should consider how closely the concerning information correlates with child safety. For example, a minor offense such as a parking ticket poses less child safety risk, while misdemeanors and felonies can be quite concerning. A recent offense is more problematic than one in the distant past, especially if the individual has a long history without re-offending. Similarly, a pattern of behavior is more concerning than an isolated incident. Offenses should be evaluated in consideration of a worker’s ability to safely and responsibly work with children.
Nonprofits and their leaders owe a legal duty of care regarding child safety. Such standard is measured according to the “business judgment rule,” which entails an objective evaluation of what a “reasonably prudent person would do in a similar situation.” The legal standard is thus essentially reasonableness.
Note too that in the event of an adverse claim, such as that a child was injured by a childcare worker who had concerning background screening information, the question may well arise of whether the nonprofit properly exercised its “business judgment.” Such question may become quite contentious, as potentially played out through social media, other publicity, the nonprofit’s stakeholders, insurance coverage issues, and even a judge or jury. In the event of such scrutiny, it will not matter that the nonprofit had any staffing shortages and therefore approved an applicant who otherwise should have been denied or, worse, skipped the screening process altogether. Such risky short cuts could lead to disastrous consequences such as actual injury to children, organizational liability, and reputational harm.
Application Decisions
As a nonprofit screens potential workers for its children’s programs, negative results will likely surface at some point. Understanding how to address concerning screening results will help a nonprofit determine the related risk and make a decision as to whether an applicant is approved to work with children.
When in doubt, should a nonprofit reject an applicant? Possibly. If an organization is struggling to find volunteers, it can be particularly tempting to allow negative results to slide and approve the applicant anyway. Resist the temptation! As explained above, a nonprofit’s leaders should investigate these matters with great care, then make informed decisions in the organization’s best interests and while keeping child safety paramount. And yes indeed, turning down an applicant for childcare-related responsibilities may be warranted.
Concluding Comments
Leaders should take negative screening results seriously. Remember that nonprofits place the welfare of children within its care in the hands of its workers - whether paid or unpaid, regular or occasional – and with critically important safety standards to follow consistently. These workers vitally promote the nonprofit’s mission, so make sure they are sufficiently vetted and pass the screening process with flying colors.
[1] The Evangelical Council for Abuse Prevention (“ECAP”) applies such standards within ministry contexts, and its resources are freely available on their website. For additional guidance regarding abuse prevention policies, see our law firm's blog article here.
[2] For more information about these screening steps, including specified recommendations and best practices for each step, see ECAP's screening standards.
[3] Note too that state or other laws may prohibit pre-employment inquiries about prior criminal convictions. See our firm’s blog article addressing Illinois’ “Ban-the-Box” law: “[It is] a civil rights violation for employers to reject applicants or otherwise take adverse action against employees based on their criminal convictions. But thankfully, and sensibly, nonprofits that provide children’s programs, such as schools, sports activities, and childcare services, are fully able to consider individuals’ criminal records in assessing their suitability for working with children. Organizational leaders should now do so more thoughtfully with respect to their employees, and with continued complete discretion for their volunteer workers.”
