Background Checks in Post-Secondary Education: What You Don’t Know Can Hurt You

Background Checks in Post-Secondary Education: What You Don’t Know Can Hurt You

Russell A. JonesAttorney at Law Russell Jones regularly counsels and trains employers on all aspects of the employment relationship, including avoiding discrimination and harassment claims, union avoidance, complying with disability and medical leave requirements, wage and hour, employment termination, workplace violence, noncompetition agreements, severance and release agreements and personnel policy design and implementation. Mr. Jones also has significant experience in assisting employers comply with federal and state laws pertaining to background checks of applicants and employees, privacy issues, and identity theft. In addition, he regularly represents employers before state and federal courts and agencies in suits alleging discrimination, harassment, retaliation, wrongful discharge, emotional distress and other employment-related claims brought by employees or applicants for employment. He has substantial experience in mediation of employment claims, litigating unfair labor practice charges before the National Labor Relations Board, and in arbitrations under collective bargaining agreements. Contact Information Russell A. Jones, Esq. Dow Lohnes PLLC Six Concourse Parkway Suite 1800 Atlanta, GA 30329 rjones@dowlohnes.com www.dowlohnes.com T: (770) 901-8820 F: (770) 901-8874

Jonathon C. Glass specializes in the representation of postsecondary educational institutions, particularly with regard to the standards of institutional eligibility and financial responsibility applicable to institutions participating in the Title IV federal student aid programs. Jonathon has advised a number of institutions and investors respecting the regulatory issues that arise in the sale or acquisition of for-profit and non-profit institutions and the regulatory challenges that arise in connection with public offerings or institutional expansion. He also counsels institutions regarding the U.S. Department of Education requirements pertaining to the development of distance learning programs as well as compliance with critical regulatory standards such as the 90/10 Rule and recruiter compensation requirements. He served as an alternate representing the Career College Association in the U.S. Department of Education negotiated rulemaking of 2000. Jonathon and his colleagues in the Education Practice Group of Dow Lohnes PLLC have counseled hundreds of companies and institutions in transactions and public offerings. They also have extensive experience in representing institutions in adverse proceedings and appeals before the U.S. Department of Education case teams and hearing officers, accrediting agencies such as the Accrediting Commission of Career Schools and Colleges of Technology and Accrediting Council for Independent Colleges and Schools, and state authorizing agencies. Jonathon graduated from Carleton College in Minnesota and Pacific School of Religion in California before earning his law degree in the Georgetown University evening program in 1991. Prior to his legal career, he was a newspaper reporter in Minnesota and St. Thomas, U.S. Virgin Islands, as well as press secretary and legislative aide to the Virgin Islands Delegate to Congress. Contact Information Jonathon C. Glass, Esq. Dow Lohnes PLLC 1200 New Hampshire Avenue, NWSuite 800 Washington, DC 20036-6802 (202)776-2691 jglass@dowlohnes.com www.dowlohnes.com T:(202)776-2691 F:(202)776-2222 Jonathon C. GlassAttorney at Law

Consider This Nightmare Scenario For Any Post-Secondary Educational Institution: • A disgruntled student (or staff member) brandishes a weapon on campus, injures students and staff, and after the smoke clears, the questions start flying, and the fingers start pointing: “What happened?” “What caused this tragedy to occur?” “Who is responsible?” And then the inevitable, “What did the school do (or could it have done) to prevent the violence?” Why didn’t the regulators prevent this?

Post-Secondary Educational Institutions Can Benefit From Obtaining Background Checks for Faculty, Staff and Students This presentation examines: • The benefits of conducting background checks on faculty, staff, and students • The process for lawfully conducting such background checks under the varying requirements of state and federal law • The types of available background information • The risks associated with conducting (and failing to conduct) background checks • Making decisions based on background information

Pre-Employment Background Checks for Staff and Faculty Why Obtain Pre-Employment Background Checks Regarding Staff And Faculty? • Screen out dangerous, dishonest, untrustworthy, or irresponsible individuals • Find the most qualified candidate for a position • Reduce turnover • Protect the school, students, employees, and the public • Confirm information provided by an applicant on an Employment Application or during an interview • Comply with laws requiring background checks • Avoid claims of negligent hiring

Pre-Employment Background Checks for Staff and Faculty When to Obtain Pre-Employment Background Checks? • There is less risk and it is more cost-efficient to conduct a pre-employment background check on an applicant after a conditional offer of employment is made but before the applicant begins working.

Pre-Employment Background Checks for Staff and Faculty What Kind of Pre-Employment Check Can Be Obtained And Used? • Requested Background Information Should Relate To The Job and May Include: • Criminal History • Sex Offender Registry • National Social Security Search • Employment History Verification • Education Verification • Credit Report • Driving Record

Pre-Employment Background Checks for Staff and Faculty Criminal History Information • Avoid Non-Pending Arrest Records • When Considering Adverse Action Based On Conviction Records, Consider: • The Nature And Gravity Of The Offense(s) • The Time Passed Since The Conviction • The Nature Of The Job Held Or Sought • State Laws May Limit Inquiring Into Or Making Employment Decisions Based On Certain Conviction Information • Criminal Conviction Information May Be Obtained Directly From An Applicant In Addition To (And Sometimes In Lieu Of) A Background Check.

Pre-Employment Background Checks for Staff and Faculty What Are the Legal Considerations in Obtaining and Using Employment-Related Background Checks? • The Fair Credit Reporting Act • State Consumer Reporting Laws • Federal Civil Rights Laws • State Fair Employment Practices Laws • State Laws Governing Obtaining And Using Certain Types Of Information • State Criminal Laws • State Privacy Laws • Federal Bankruptcy Act • EEOC Guidelines Regarding Arrest and Conviction Records

Pre-Employment Background Checks for Staff and Faculty The Fair Credit Reporting Act (“FCRA”) • Does Not Cover Information Obtained By The Employer Itself • Covers More Than Just “Credit Reports” • Applies To Consumer Reports And Investigative Consumer Reports • When Information Is Used “For Employment Purposes”

Pre-Employment Background Checks for Staff and Faculty Four Steps to Compliance with the FCRA Step One: Disclosure and Written Consent Step Two: Certification to the CRA Step Three: Pre-Adverse Action Notice Step Four: Post-Adverse Action Notice

Pre-Enrollment Background Checks for Applicants and Students Why Obtain Pre-Enrollment Background Checks On Applicants And Students? • Screen out dangerous individuals • Protect the school, students, employees, and the public • Confirm information provided by an applicant on an application or during an interview • Avoid claims of negligent enrollment • Avoid claims of fraud in the inducement

Pre-Enrollment Background Checks for Applicants and Students Post-Secondary Institutions may run background checks on current students in order to comply with program requirements: • Example: law enforcement, nursing, pharmacy, medical, legal and early childhood education programs may use routine background checks to comply with clinical or internship program requirements • Example: The Association of American Medical Colleges Criminal Background Check Advisory Committee recommends that all accepted applicants to medical schools undergo a criminal background check in order to: • bolster the public’s continuing trust in the medical profession • enhance the safety and well-being of patients • ascertain the ability of accepted applicants and enrolled medical students to eventually become licensed as physicians • minimize the liability of medical schools and their affiliated clinical facilities

Pre-Enrollment Background Checks for Applicants and Students What Are the Legal Considerations in Obtaining and Using Student Background Checks? • Juvenile records may be sealed or expunged • A student denied admission because of information revealed in a background check may have a potential civil rights claim. • If an institution conducts background checks, admits a student with a criminal background and that student goes on to commit a related crime, the institution may be open to civil liability for negligence • If an institution doesn’t conduct background checks, admits a student with a criminal background and that student goes on to commit a crime, the institution may be open to civil liability for failure to properly screen applicants

Pre-Enrollment Background Checks for Applicants and Students • Some state laws specifically address whether post-secondary educational institutions may be required to obtain background checks or may be prohibited from obtaining background checks on students. • Example: Illinois statute requires pre-matriculation background checks on medical students • Example: Virginia requires public and private post-secondary institutions to submit student data for all applicants that are offered admission to the Department of State Police for comparison with information contained in the Virginia Criminal Information Network and National Crime Information Center Convicted Sexual Offender Registry File. Virginia post-secondary institutions are also permitted to require a matriculating student’s records from previously attended educational institutions (including high school), including any mental health records held by the school

Pre-Enrollment Background Checks for Applicants and Students Laws That May Be Implicated in Obtaining Student Background Checks • Anti-Discrimination Laws • The FCRA • Juvenile Records • Tort Claims • Duty to Warn or Protect

Pre-Enrollment Background Checks for Applicants and Students Protecting the Educational Institution and Students • Liability can be limited if educational institutions use background checks consistently, appropriately and with sound legal guidance. • Institutions using background checks should use them consistently and confidentially. Arbitrary use of checks may open institution to liability on a student civil rights claim. • Institutions using background checks should establish clear written policies with the assistance of legal counsel, and subsequently adhere to those policies. • Institutions may benefit from utilizing a system parallel to the FCRA requirements for pre-employment background checks.

Pre-Enrollment Background Checks for Applicants and Students • Like with pre-employment background checks, there is less risk and it is more cost efficient to conduct a pre-enrollment background check on an applicant after a conditional offer of enrollment is made but before the applicant matriculates.

Conclusion • Post-Secondary Educational Institutions Can Potentially Protect Students, Staff, Faculty and Themselves by Obtaining Pre-Employment and Pre-Enrollment Background Checks on Faculty, Staff, and Students • Due to Varying State and Federal Laws That May Be Implicated in Obtaining And Relying Upon Background Checks, Post-Secondary Educational Institutions Should Create and Carefully Implement Consistent Policies Regarding These Checks

Questions?

Background Checks in Post-Secondary Education: What You Don’t Know Can Hurt You