Safeguarding Your Reputation and Protecting You From Liability Through Background Screening

Posted Thursday, September 13th, 2018 by Sterling Volunteers Staff

Safeguarding Your Reputation and Protecting You From Liability Through Background Screening

Most organizations running volunteer programs know they need to screen their volunteers – at the very least those volunteers who are working with vulnerable populations or who have access to sensitive information. Every organization has their own approach, preferences and requirements for conducting background checks. Ultimately, they are looking for the most comprehensive picture of their candidates. Pam Devata and Courtney Steiber of Seyfarth Shaw, LLP share best practices for screening volunteers and how background checks can minimize  risk and maximize safety at your volunteer organization in the latest Sterling Volunteers webinar, “Volunteers in the Workplace: Safeguarding Your Reputation and Protecting You from Liability Through Background Screening”.

Reasons to Conduct Volunteer Background Checks

There are many reasons to conduct volunteer background checks. Most importantly, is to protect the safety of the groups that you work with, your staff, property and the general public. By performing background checks including criminal record checks, sex offender list checks and more, organizations can help protect themselves from negligent hiring or retention claims. Even though you might think that terms refer just to employment hiring, it also matters when adding and keeping volunteers. According to the RESTATEMENT (SECOND) OF AGENCY, Section 213 (1958), negligence is to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such a person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.

With many compliance issues involved in volunteer background screening, it is important to partner with a third-party consumer reporting agency (CRA) who are specialists in background screening. Sterling Volunteers has access to a broader range of background check sources, information and tools to manage the volunteer screening process quickly and compliantly.

FCRA Compliance

Whether new to volunteer background screening or well versed, there is a lot to learn and background screening is a highly regulated industry. Volunteer candidates are protected under various local, state and federal laws and volunteer managers need to be familiar and compliant with these regulations when taking on volunteers and paid staff. Background screenings are regulated by the Fair Credit Reporting Act (FCRA), which is a federal consumer protection statute mandating certain responsibilities to a Consumer Reporting Agency (CRAs) and end-users or the employers. The law only applies when a company is using a third-party to conduct their background checks.

If a volunteer organization conducts background screening on their volunteer candidates, they must follow four responsibilities under the FCRA or they could be financially penalized:

  • Certification to CRA: Employers utilizing consumer reports for employment purposes must certify to the CRA that they will distribute the required written disclosure and obtain the written authorization and that they will comply with the adverse action requirements.
  • Permissible Purpose: The organization requesting a background check must have a permissible purpose to conduct the checks on their volunteers, such as one is required for employment.
  • Disclosure and Authorization: For volunteer or employment purposes an organization is required to disclose in a separate document that a consumer report may be obtained. Then, they must obtain a written authorization from the candidate before the report is ordered. The FTC has ruled that the disclosure and authorization can be on the same form, but it must be separate from the application and specific state requirements must also be followed.
  • Adverse Action: Adverse action is a two-step process for employment: pre-adverse action and the adverse Before adverse action is taken, the volunteer organization must provide the candidate with a copy of the background check report, a summary of the consumer’s rights under the FCRA and any state law requirements. Between the pre-adverse action and action step, the volunteer organization must wait for at least five days to allow the candidate time to dispute the findings of the report. If the organization denies hiring the volunteer or paid staff member, the organization must send the notice of adverse action, with the name, address and toll-free number of the CRA that furnished the consumer report and a statement that said the CRA did not make the decision to take adverse action and is unable to provide the specific reasons why the adverse action is taken.

Ban the Box Legislation and Requirements for Volunteers

As part of the individualized assessment, many states and cities have legislation that goes one step further requiring employers to remove the criminal history box on applications and asking a volunteer candidate about criminal history during the interview process. Volunteer organizations must be aware of these laws when adding volunteers as well as paid staff to their teams.

Background checks are also regulated under the Equal Employment Opportunity Commission (EEOC). The EEOC recommends an “individualized assessment” of volunteer applicants. The assessment includes the following factors that must be reviewed when considering criminal records:

  • Facts or circumstances surrounding the offense or conduct
  • Number of offenses for which the individual was convicted
  • Age at the time of conviction, or release from prison
  • Evidence that the individual performed the same type of work, post-conviction, without any known incidents of criminal conduct
  • Length and consistency of employment before and after the offense
  • Rehabilitation efforts
  • Character references
  • Whether an individual is bonded under a federal, state, or local bonding program

Volunteer Screening Compliance

To review the volunteer background screening compliance information shared during the webinar or if you missed being able to attend “Volunteers in the Workplace: Safeguarding Your Reputation And Protecting You from Liability Through Background Screening”, you can download it On Demand at any time.

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