Have You: Instituted Background Checks?

I don’t know about you,  but I’ve volunteered for a couple organizations that had somewhat “sketchy” volunteers. But more than being uncomfortable, I’ve started to notice more and more lawsuits holding non-profit organizations responsible when volunteers go (or do) wrong.

There is a school of thought out there that believes a non-profit should take it upon themselves to do their due diligence on those they plan to employ/use in their organizations. Particularly when vulnerable people (like children, the elderly, the disabled) or sensitive information is involved.

And to their credit,  states are increasingly mandating companies to use background checks in certain instances. However, just because these rules are usually in place only for for-profits (for now) doesn’t mean it wouldn’t be good practice for non-profits to follow suit, particularly when the organization is similarly situated. Not to mention, having something in place will definitely help should you ever face suit for negligently hiring an employee or using a particular volunteer.

If the background check bandwagon sounds like one you’d like to hop on, here are a few things to keep in mind:

  • Many states have laws governing what information can and cannot be collected in a background check. Be sure to check these out before beginning anything.
  • While you’re at it, research whether your industry or field requires background checks. If so, what information must be obtained?
  • The Federal Fair Credit Reporting Act (FCRA) governs those using outside agencies to get background checks done. Be sure to look this over before implementing anything as well.
  • Background checks constitute as “consumer reports” under the FCRA. That means there must be a clear and conspicuous  written disclosure signed by the one you seek to obtain a background check from explaining that a “consumer report” will be obtained. This must be done by the organization prior to requesting it.

Regarding forms, you will need a disclosure and release (both of which can be combined if you want). Some things you will want to include and keep in mind are:

  • Language where your employee/volunteer expressly acknowledges the organizations ability to obtain a report on them.
  • Parameters. When will reports be obtained? On a one time basis? Or as you see fit? Also, what information will these reports include? Lay all this information out.
  • Clarity as to what effect these reports will have. If employment will be contingent upon them, make that clear from the beginning. This will help avoid wrongful termination suits.  Those aren’t very fun.
  • Provisions protecting you against liability for any false or incorrect information obtained from the outside agency.
  • Per federal statute (15 U.S.C. 1681(b)(2)(A)), the disclosure must be given to the employee by itself and cannot be included into any employee handbooks or applications.
  • In compliance with FCRA,  you must attach a summary of rights (which can be found at www.ftc.gov/os/2004/07/040709fcraappxf.pdf.)

I will admit,  instituting background checks can be legally tricky. Recently, I’ve seen cases where employees and contractors are suing for invasion of privacy. Some states require that there be a direct correlation between the check and the job/position for which they are in. Others strictly mandate how the information must be used, and when employees may be dismissed as a result of the information you receive. Not to mention, you  have to worry about securing and disposing of all this highly sensitive information. So background checks are one of those things you will want to at least speak to an attorney about when coming up with a plan.

The biggest thing to remember is that your policies MUST, MUST (all together now) MUST match with what you have in the forms. If you don’t have the time or resources to implement the policies as you have them written, and signed, then don’t bother writing anything up. It will only end up causing more problems then if you didn’t have anything in place at all.