Employer Background Checks by Schools and Other Organizations

By Karen Sutherland

One “back to school” concern that exists for employers with school programs and for parents and other caregivers is how to reduce the possibility that an employee or volunteer will harm a child or other vulnerable person. One tool to address this concern is Washington’s law that allows for detailed background checks on individuals who work with children, developmentally disabled persons, or vulnerable adults. State law also requires that an employer obtain certain background information from applicants for such positions as part of the pre-employment process.

Entities Covered by the Statute

The relevant statute is RCW 43.43. 830 et seq., which addresses the duty and ability of certain employers to conduct background checks. The statute applies to “businesses and organizations” that train, treat, supervise, house, or provide recreation to children under sixteen, developmentally disabled persons, or vulnerable adults, which would include many schools. See RCW 43.43.830(2). The statute applies even if these activities are not the business’ or organization’s main purpose. For example, if your clients or your law firm provide day care or after school programs for their employees’ children, the statute would apply.

For covered schools, businesses or organizations, RCW 43.43.832(1) authorizes the employer to request from the Washington State Patrol an applicant’s record for convictions of offenses against children or other persons, convictions for crimes relating to financial exploitation, child abuse in a civil action, the issuance of a protective order under 74.34 RCW, and disciplinary board final decisions and any subsequent criminal charges associated with the conduct that is the subject of the disciplinary board final decision.

Employment Applicants Covered by the Statute

The individuals whose records may be sought is not limited to individuals who will be supervising children or vulnerable adults, but includes individuals who will have access to such persons. An “applicant” is defined as any prospective employee or volunteer who may have unsupervised access to children under sixteen, developmentally disabled persons, or vulnerable adults. RCW 43.43.830(1). Thus, support staff such as receptionists, office support staff, maintenance workers, cooks and grounds-keepers are also covered.

How to Obtain Background Information

When the above criteria are met, the school, business or organization is authorized to request the above listed information from the Washington State Patrol, but is not required to do so. The request may only be made if the business or organization notifies the applicant, who has been offered a position, that the request is being made. RCW 43.43.834(1). In other words, the inquiry is made after the applicant has been offered the position. The business or organization must also notify the applicant when it receives the requested information and provide a copy of the information to the applicant. RCW 43.43.834(4). The business’ or organization’s use of the information is limited to “making the initial employment or engagement decision.” RCW 43.43. 834(5). A violation of this provision by the employer is grounds for a civil action for damages.

The above-described background checks are available for qualified schools, businesses or organizations to use, but they are not required. The statute specifically states: “The business or organization shall be immune from civil liability for failure to request background information on an applicant unless the failure to do so constitutes gross negligence.” RCW 43.43.834(7). Thus, an organization or business may want to do background checks in order to protect the people it serves and to help protect itself from a claim of negligent hiring.

Mandatory Inquiries for Employment or Volunteer Applicants

Although background checks are not required by this statute, there is one mandatory duty imposed on schools, businesses or organizations providing services to children, developmentally disabled persons, or vulnerable adults described in the statute. RCW 43.43. 834(2) states that business or organizations “shall require” each applicant to disclose, in writing and under penalty of perjury, whether the applicant has been:

• convicted of any crime against children or other persons;
• convicted of crimes relating to financial exploitation if the victim was a vulnerable adult;
• found in any dependency action under RCW 13.34.040 to have sexually assaulted or exploited any minor or to have physically abused any minor;
• found by a court in a domestic relations proceeding under Title 26 RCW to have sexually abused or exploited any minor or to have physically abused any minor;
• found in any disciplinary board final decision to have sexually or physically abused or exploited any minor or developmentally disabled person or to have abused or financially exploited any vulnerable adult; or
• found by a court in a protection proceeding under chapter 74.34 RCW, to have abused or financially exploited a vulnerable adult.

Current Employees are Not Covered

Nothing in RCW 43.43.830 et seq. authorizes or requires a school, business or organization to conduct background checks on current employees. The statutory provisions are specifically limited to prospective employees and volunteers. Furthermore, the statute does not state that an applicant or current employee is disqualified from any of the covered types of employment for having a relevant conviction. Therefore, employers may want to amend the job descriptions and qualifications for affected positions to make lack of a record of convictions for relevant offenses a bona fide occupational qualification.

What it All Means

All employers face potential liability for negligent hiring, negligent retention, negligent supervision or negligent training of their employees. “To prove negligent hiring in Washington, the plaintiff must demonstrate that (1) the employer knew or, in the exercise of ordinary care, should have known of its employee’s fitness at the time of hiring, and (2) the negligently hired employee proximately caused the resulting injuries.” Carlsen v. Wackenhut Corporation, 73 Wn. App. 247, 252-53, 868 P.2d 882 (1994). Washington court decisions tend to employ a type of balancing test to determine if the given employment warrants the extra burden of a thorough background check. Id. at 256. However, in the context of RCW Ch. 43.43, there is no civil liability for failing to request background information on an applicant unless the failure to do so constitutes gross negligence. RCW 43.43.834(7). So far, there are no reported cases addressing what would constitute “gross negligence” in the context of RCW Ch. 43.43, such as whether failing to include the statutorily-required questions about the applicant’s past and failing to do any other background check would constitute gross negligence, or whether failing to follow up on any disclosures made by the applicant pursuant to RCW 43.43. 834(2) would qualify.

In any event, schools, businesses and organizations should use an application that includes the questions set forth in RCW 43.43.834(7) for all employee and volunteer applicants if the business or organization fits within the scope of the statute. Additionally, to reduce the likelihood of potential liability for negligent hiring, they should follow up on any incomplete or inconsistent information or any information that demonstrates that the applicant would be unfit for the position.