Background checks for volunteers and staff: the legal steps

Our guide to volunteer screening and safeguarding explains how to match screening to the role, the everyday safety rules that matter as much as any check, and how to respond to concerns. This guide goes one step deeper on the legal side of the check itself: what federal law says when you use a background check company, how state fingerprint checks work, and the "fair chance" laws that limit when an employer may ask about criminal records.

Two kinds of check

Small charities usually get background information in one of two ways:

• From a background check company (sometimes called a consumer reporting agency) that searches court records, sex offender registries and other sources and sends you a report.
• Through a state agency, often with fingerprints, that checks state records and, in some programs, the FBI's national records.

Different rules apply to each, so know which one you're using.

Using a background check company: the FCRA steps

The Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC) publish a joint guide, Background Checks: What Employers Need to Know. When an employer uses a company to get a background report, it says the employer must follow the federal Fair Credit Reporting Act (FCRA). The guide is written for employers. Our safeguarding guide explains why many charities follow the same steps for volunteers, as the simplest safe course.

Before you get the report

• Tell the person in writing that you may use the information for decisions about them. The guide says this notice must be "in writing and in a stand-alone format," not part of an application form. The FCRA itself (15 U.S.C. 1681b(b)(2)) calls for a clear and conspicuous written disclosure "in a document that consists solely of the disclosure."
• Get their written permission before the check is run. The FCRA allows the permission to be on the same document as the disclosure.

Before you turn someone down because of the report

The guide says you must first give the person:

• a notice that includes a copy of the report you relied on, and
• a copy of "A Summary of Your Rights Under the Fair Credit Reporting Act."

The guide says you should get the summary from the company that sold you the report; under the FCRA (15 U.S.C. 1681b(b)(3)), its content is prescribed by the Consumer Financial Protection Bureau (CFPB). This gives them a chance to point out a mistake, such as a record that belongs to someone else with the same name, before you decide.

After you decide

If you do turn them down, the guide says you must tell them:

• that they were rejected because of information in the report,
• the name, address and phone number of the company that sold the report,
• that the company didn't make the decision and can't give specific reasons for it, and
• that they have a right to dispute the accuracy or completeness of the report, and to get an additional free report from the company within 60 days.

Keep it safe, then destroy it

The guide says the law requires you to dispose of the reports, and any information gathered from them, securely. Keep reports apart from general files, limit who can see them, and shred or securely delete them when you no longer need them, in line with your document retention policy.

Treat everyone the same

The EEOC and FTC guide says: "In all cases, make sure that you're treating everyone equally." It warns against a policy or practice that excludes people with certain criminal records if it "significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee." Check everyone in the same role the same way, and decide in advance which records actually matter for that role.

Fingerprint checks through your state

The National Child Protection Act (34 U.S.C. 40102) lets states set up procedures for organizations to request a nationwide background check, through an authorized state agency, to find out whether a person has been convicted of a crime that bears on their fitness to be responsible for the safety and well-being of children, the elderly or people with disabilities. Where a state hasn't set up its own procedures, the law directs the U.S. Attorney General to run a program that gives qualified organizations access to these checks.

The law sets rules for these checks. Among them:

• the person must first provide fingerprints and sign a statement that, among other things, tells them the organization may request a check and explains their rights,
• the statement also tells them the organization may keep them away from the people it serves until the check is complete,
• the person is entitled to a copy of the report and to a process to appeal its accuracy or completeness, and
• the state agency decides whether the person has been convicted of, or is under pending indictment for, a relevant crime, and tells the organization.

The law also says fees for these checks should be set so they don't discourage volunteers from taking part in programs for children, the elderly or people with disabilities. Whether your charity can use this route, and how, depends on your state. Ask your state police or the state agency that handles criminal records whether it runs a program for nonprofits or volunteer organizations.

Fair chance ("ban the box") laws

Some states and cities limit when an employer may ask job applicants about criminal history. The EEOC and FTC guide notes that "some states and municipalities regulate the use of that information for employment purposes." The rules differ a lot. Two examples:

• California. The California Civil Rights Department says the Fair Chance Act prohibits employers with five or more employees from asking a job candidate about conviction history before making a job offer. Its fact sheet says the rules are in Government Code section 12952, that a background check may be run after a conditional job offer, and that an employer who wants to take back an offer because of a conviction must give written notice and at least five business days from receipt to respond before deciding.
• New York City. The city's Commission on Human Rights says the parts of its human rights law covered in its Fair Chance Act guidance apply to employers with four or more employees. Employers generally can't ask about or consider an applicant's criminal history until after a conditional offer. To withdraw an offer because of a record, the employer must give the applicant a written copy of the inquiry and its analysis of the record under the listed factors, which include the time that has passed and evidence of rehabilitation, and allow at least five business days to respond. The Commission says protections that apply to employees also apply to interns, freelancers and independent contractors.

Neither page we checked says whether these rules cover unpaid volunteers. If you're hiring staff in a state or city with a fair chance law, build its steps into your hiring process, and ask a lawyer whether and how it applies to your volunteer roles.

Deciding about a record

When a check turns something up:

• Confirm it's the right person and an accurate record. Mistakes happen.
• Ask whether it relates to the role. A decades-old conviction may say little about someone driving a van; a recent conviction for harming a child says a lot about a role with children.
• Give the person a chance to explain, and follow the FCRA and any fair chance steps before you decide.
• Write down your reasons, and keep the decision confidential.
• Never let a clean check replace supervision. As our safeguarding guide explains, most people who harm others have no criminal record.

Background check checklist

• We know which roles need a check, and use the same check for everyone in a role
• We know whether we use a background check company, a state fingerprint program, or both
• We use a stand-alone notice and written consent before any check by a company
• We send a copy of the report and the FCRA Summary of Rights before turning someone down
• We send the after-decision notice with the company's details and dispute rights
• We know whether a state or city fair chance law applies to our hiring, and follow its timing
• Reports are stored securely, seen only by those who need them, and destroyed safely