If your company hires employees to work with children, you need to know the rules about running background checks. In some states, employers are legally required to take a closer look at employees who will interact with children, the elderly, and other potentially vulnerable populations.
Even if your state doesn’t impose this type of requirement, parents may expect you to investigate those who will spend time with their children. And, doing so will help you avoid workplace problems and potential legal liability.
Criminal Background Checks
Whether criminal background checks are required (or allowed) for employees who will work with children depends on state law. Generally, the trend in state laws in the last few years has been to discourage employers from relying too heavily on certain criminal records. Some states, including Hawaii and Illinois, have adopted “ban the box” laws, which prohibit employers from asking applicants to check a box on an employment application if they have a criminal record. A number of states, including California, prohibit employers from asking applicants about arrests that did not lead to conviction. And in recent years, the Equal Employment Opportunity Commission (EEOC) has clarified its guidance on when and how relying on criminal records in hiring can lead to discrimination claims.
When it comes to employees who will work with children, however, concerns about child welfare and safety still trump concerns about job opportunities and second chances for those with a criminal record. Many states either allow or require private sector employees to run criminal background checks on employees who will have direct contact with, or responsibility for, children. In Georgia, for example, all employees of licensed child-care facilities must undergo a state and federal criminal records check. In Pennsylvania, employees and volunteers who will have routine and direct contact with children must submit to a state and federal background check, with periodic rechecks throughout their employment. For information on state laws regarding background checks of child care workers, see the ChildCareAware website. Also see the Nolo article State Laws on Use of Arrests and Convictions in Employment.
Whether your state allows or requires you to run criminal background checks on employees who will work with children, it’s a good idea to investigate potential hires. Parents entrusting you with the care of their children will feel more comfortable knowing that you have screened your employees. And, if you fail to check the criminal backgrounds of the employees you hire, you could face legal liability for negligent hiring. In a negligent hiring lawsuit, someone who is harmed by your employee claims that you failed to take reasonable care in choosing your workers. If, for example, a child in your care is assaulted by an employee, that child would have a strong negligent hiring claim if the employee had a criminal record of such misconduct, which you could have found had you only run a background check.
Not all states allow negligent hiring claims, and the laws on criminal background checks also vary from state to state. An experienced local employment lawyer can tell you what your state requires, what it allows, and how best to make sure you are protecting the children in your care.
Procedures You Must Follow in Conducting Background Checks
If you decide (or are required) to conduct background checks, you must follow the federal Fair Credit Reporting Act (FCRA). This law is intended to give applicants some notice when their records are checked, and the opportunity to know what information is compiled about them and how it is being used. If you hire an outside investigator or request records from outside agencies, you must follow three steps:
- Get the applicant’s consent before doing a background check. The applicant doesn’t have to agree, but you can refuse to hire the applicant on that basis.
- Give the applicant a copy of the report you receive and a required notice form if you plan to reject the applicant based on the report.
- Send the applicant a final notice stating that you have decided not to hire based on the report, along with information about the applicant’s right to dispute the contents of the report.
See the Federal Trade Commission website section on Employment Background Checks for information on federal law. Some states have laws similar to the FCRA. An experienced attorney can tell you how to perform a criminal background check that complies with federal and state law.