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.
Jesus said, "Let the little children come to me." It is a sad state of affairs that given such a command we have to talk about a policy that protects kids. Nevertheless, year in and year out, the abuse of kids and vulnerable adults is the top reason why churches end up in court. Since churches get sued most frequently on this issue, the question isn't "why have an attorney review our child protection policy?" The question is, "why wouldn't you?" Here are a few good reasons your church needs a child and vulnerable adult protection policy written by an attorney.
- Your church needs a policy that protects children and vulnerable adults from sexual predators.
Let's start with the main reason you need a good child and vulnerable adult protection policy: sexual abuse in the church hurts the cause of Christ, especially when its victim is a child. The church should be a beacon of hope that points to Christ, not the object of criticism because church leaders did not have a good policy in place to protect kids when they know how prevalent sexual abuse in the church has been up until now. Your church must have a robust policy that does everything it can to prevent abuse from ever occurring.
Secondly, you need a policy that aligns with what most liability insurance companies want. Josh Bryant has experience working with insurance companies on obtaining supplemental sexual incident coverage that is not covered by most general liability policies. Insurance companies are in a great position to know how sexual abuse in the church has occurred in the past, and know exactly what kind of policies they want to see before underwriting an insurance policy.
Third, your church needs a policy that perseveres evidence that a defense attorney will want to present to a judge or jury in the event your church is sued after an allegation of sexual misconduct. Unfortunately, churches in which sexual abuse has occurred are more likely to be guilty until proven innocent, and the only things that proves innocence is evidence. You must preserve evidence as best you can, and Josh Bryant has experience in litigation such that he knows what kind of evidence is necessary.
Fourth, your church needs a policy that is as legally defensible as it is operationally manageable. No policy is worth the paper it is written on if the pastors and volunteers responsible for enforcing that policy don't do it. Most pastors and volunteers don't want to be insubordinate to church policy - they simply don't have the time to do much of what a policy requires sometimes. That is why it is important to have an attorney with experience not only in law, but in ministry as well. Josh Bryant can help balance the ministry needs with the legal best practices.
Finally, you need someone to help with your child protection policies like Josh Bryant, who has the experience necessary to get the job done well. When you sign up for our attorney access plan, this is usually one of the first policies that Church General Counsel will review.
It is so important to have a good child protection policy. Members can see more tips on drafting this policy in our members only area, or you can contact us for more information on how we can help you draft a good child and vulnerable adult protection policy.
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.