Real responses to real-life questionsNigel Barker, leader of Cystic Fibrosis Western Australia (CFWA) for nearly a decade and is an active participant on the MissionBox Advisory Board, shares his response to the MissionBox DoubleTake — a column that offers opinions about the peskier aspects of working in the nonprofit sector. The opinions offered here are based on the author's personal nonprofit experience and may not reflect the opinions of MissionBox, Inc. These opinions should not be considered legal advice or used as a substitute for professional legal consultation. MissionBox readers are invited to submit alternative responses, which may be published here as well.
My nonprofit employer doesn’t do background checks and I'm concerned it's putting us at legal risk.
My nonprofit provides after-school arts programs for middle school students. Recently, a co-worker was arrested at work on an outstanding warrant for burglary.
Our executive director said the organization doesn't carry out background checks because the kids are never alone with the art teachers. This is beside the point, as someone with a background of pedophilia, for instance, could use the classroom time to groom and build trust with a child, who would then think it was safe to meet the teacher outside of class. I also know that if the parents of our students knew there were no background checks, they wouldn't let the their children attend, and rightly so.
As well, I wished I’d known I was working with someone who may have broken into a stranger’s home. It freaks me out to think of how many times he was in my house for dinner parties or other social events. He could have rifled through our belongings or cased our few valuables for future burglary.
Some of my co-workers say they feel that background checks are invasive and cross the privacy line. I think they are necessary to keep students and staff safe.
What is the correct course of action here?
Nigel says …
There are two elements to your question. Firstly, the legal and ethical responsibility of the employer to exercise its duty of care to both employees and clients and provide a safe environment for both.
The second element is more philosophical: it’s about the role of our justice systems and the balance between deterrent, punishment and rehabilitation.
So, let’s deal with the responsibility of the employer first.
In Australia, we have a police check and a working with children check, both available at a low cost online, which almost all employers will undertake before employing a person in a particular role. Some prospective employees will provide this to employers as part of their application.
These checks search national databases for any criminal record. A person who has a criminal record for child sex offenses is automatically excluded from working in a role in an organization where he or she is in contact with children, alone or in a group situation. And that’s the way it should be.
Any employer who employs a person who has been successfully prosecuted for pedophilia in a role where they are in contact with children, alone or in a group session is exposing themselves to legal action for not taking all reasonable precautions in providing a safe environment.
Employers should always obtain background checks on prospective employees as part of their duty of care particularly when employees are working with vulnerable clients such as children or the elderly.
That leads to the second issue. Should a police record automatically prevent a company offering an ex-con a job? The answer is, of course, it depends.
Take the real-life case of a young Australian man who bought some cannabis for himself and his friends to celebrate his 18th birthday (that made him legally an adult in Australia.) His supplier turned out to be undercover law enforcement.
The quantity of drugs he purchased led to his prosecution for drug trafficking, which legally made him a drug dealer. To date, this is the only blemish on his record and it happened 30 years ago. A few years ago, he applied for a US visa to attend the wedding of his brother in Hawaii but was refused on the grounds that he was a convicted drug dealer.
In this situation, the employer might deal with him more leniently. But his conviction is still a material fact that the prospective employee should disclose. It’s going to show up in a background check so it's best to be open about it.
It also helps that we have mandatory drug and alcohol testing in some workplaces in Australia and a zero-tolerance policy, which means automatic dismissal if your tests come back positive.
Explain to your executive director their duty of care and let him or her make a judgment call on the necessity to undertake background checks.
With regard to this employee, precautions should be taken to ensure that there is no damage to the organization. A person is innocent until proven guilty in Australia and a sensible course of action may be to suspend the employee on full pay, pending the outcome of the trial.
Now, your take!
Ruth T-C says … Any time you work with children, you have to take extra care. I would urge the head of the organization to consider instituting a policy of background checks, starting with something in the employment application where potential hires say whether they have criminal convictions in their pasts. If that doesn’t happen, it might be time to consult the board about such policies.
I would also change the locks on my home’s doors.
These steps might be overkill in some instances, but again — when you work with children, extra precautions are in order. The organization also owes a measure of protection to its employees.