by Josh Bryant
Churches have a heightened sensitivity to background checks right now in light of a report by the Houston Chronicle that found 700 cases of sexual misconduct over the last 20 years in Southern Baptist Churches. But do you know what to do when you get a positive result? The answer may seem to be as simple as telling the person they cannot volunteer or serve on staff, but because of the Fair Credit Reporting Act, it isn't that simple. Here are five things you need to know about a positive background check.
1. Make sure you had their permission before you do anything. Several laws require written consent of the person before you run a background check on them. Failure to have that permission could get your church into trouble with the Federal Trade Commission, the Consumer Finance Protection Bureau, the Department of Justice, and any number of state institutions, not to mention a law suit for invasion of privacy. If you didn't have their permission, go get it and run the background check again.
2. Don't say no...yet. Before you take an "adverse action" against a volunteer or staff member by not allowing them to serve, you must give them a notice that includes a copy of the background check report you received. You must also include a document put out by the CFPB called "A Summary of Your Rights Under the Fair Credit Reporting Act" and give them at least five days to explain or contest the content of the report. To be safe, give them ten.
3. Now you can say no. If they don't contest the information or explain it to your church's satisfaction, now you can tell them no. But you have to do it in a certain way too. You have to tell them that they were rejected because of the information in the report, give them the name, address and phone number of the company that ran the report, inform them that the company who ran the report did not make the decision to deny them the opportunity to serve, and inform them of their right to dispute the accuracy or completeness of the report and get a free copy of the report from the company that ran it within 60 days. But...
4. Make sure you say no uniformly. Especially in the context of employment, failure to uniformly say no is discriminatory and can get your church in trouble. For example, if you tell one applicant no because they had a DWI on their record and another yes even though they also had a DWI on their record, you'd better have a very good reason for treating the two differently or you could be in trouble with the EEOC. Volunteers really don't have much of a recourse, but it does look bad. So write down what disqualifies a person from what roles in the church so that you plan in advance how to handle certain findings on a background check. And...
5. Make sure you maintain confidentiality. You need to lock the report up for a year and then either shred or burn it. If you store it digitally (which I don't recommend), you need to make sure you've got adequate data security in place and that you have the proper IT infrastructure to completely erase the data from your systems after a year. Moving it to the recycle bin or trash can on your computer is insufficient; the FCRA mandates that electronic copies cannot be reconstructed. That usually requires special software or hardware to make happen.
Dark cloud. Sad day. Euphemisms like this abound regarding a report by the Houston Chronicle that found over 700 cases of abuse in Southern Baptist Churches over the last 20 years. Prior posts on the Church Law Blawg have discussed how we can prevent claims like this. We can implement stringent policies that govern who can work with children and under what circumstances. We can limit counseling sessions with members of the opposite sex by bringing in a trained professional or including more than one counselor in the session. We can install internet filters that prohibit and prevent access to pornographic or dating sites. These are designed to increase your church's security, but as the adage goes, "there is no such thing as absolute security." We live in a fallen world, and despite our best efforts to prevent sexual abuse and misconduct in the church, it will most likely happen again. The question then is not just how do we prevent it, but also how do we respond to it? Here are a few things you can do in your church:
1. Encourage Reporting. When the dust has settled from a report of sexual abuse in the church, there can be no ambiguity about whether a victim was encouraged to or discouraged from reporting. In fact, there are a great many pastors who this week will feel compelled to address their congregations about the Houston Chronicle story. What a great time to stand in front of your congregation and encourage people to report it if they've ever been sexually abused in the church.
2. Institute an Open Door Policy. Allegations of sexual abuse on staff should not be delegated to the worship pastor. Unless the senior pastor is the alleged offender, the senior pastor's door needs to be wide open to hear allegations of sexual misconduct. This is worth interrupting your study time to hear about. It is a big deal that threatens the flock much more than losing a couple of hours of parsing out Greek words and diagraming passages.
When the dust has settled from a report of sexual abuse in the church, there can be no ambiguity about whether a victim was encouraged to or discouraged from reporting.
3. Call Law Enforcement. Especially if the victim is a minor, and while you're at it call your state's child abuse hotline. Failure to do so not only makes matters worse for everyone involved, it is probably criminal. Do not ask a victim not to call the police. If the victim voluntarily asks that it be handled internally, call the police anyway. There can be no ambiguity as to whether you encouraged or discouraged reporting.
4. Isolate the Offender. Immediately. Don't wait. Don't take the night to sleep on it. Call the offender if he or she is on staff and tell them to stay home the next day until this gets sorted out. This protects the church by preventing the destruction of possible evidence. It protects the individual from the same accusation, plus a dozen more problems that could come about after the individual returns to work. Most importantly, it protects the victim. Keep the identity of the victim and alleged offender private from everyone except law enforcement, your attorney, and your insurer.
Call your church's attorney and then get out of the way... If you try to investigate and find out exactly what happened, you'll eventually find yourself having chosen one side and ostracized the other. That's not the place of the church's shepherd.
5. Get Help. Do not try to investigate this on your own. Call your church's attorney and then get out of the way. Cooperate with law enforcement and your church's attorney's investigation. Instruct your staff to cooperate as well, then go back to your office and pray for your church. Devote yourself "to the ministry of the Word and to prayer." (Acts 6:4). If you try to investigate and find out exactly what happened, you'll eventually find yourself having chosen one side and ostracized the other. That's not the place of the church's shepherd. Then follow the advice of your church's God-fearing attorney, who should be praying for your church right along side you.
Church General Counsel Managing Attorney Josh Bryant, J.D., M.Div., authors most of the posts in this section. From time to time, he will post articles from others in the field of church growth, administration, and operations.