Christopher W. Shishko
“Things aren’t what they used to be.” You may have said this or something like it, but probably not before you actually changed the way you have been doing something. Times really do change, and what was common practice years ago may no longer be sufficient to address the realities that face a church today. However, given the right guidance, it may be easier than you think to change the way you have done something in the past.
One topic that you probably will deal with, on a regular basis, is the extent to which your church should look into the backgrounds of its members who volunteer or who work for the church. This is particularly true when church volunteers will be working with children. This article will attempt to provide our readers with some ideas on how to develop a policy for conducting background checks on church volunteers. It is being published in tandem with an article that provides a practical perspective from a pastor who has recently implemented such a policy in his church.
The reality of today is that bad things can happen, and if they do, it is likely someone will be looking to determine whether your church behaved reasonably under the circumstances. It is no longer uncommon for large organizations like some churches to conduct background checks or some form of due diligence regarding people who will be working with children. For a church, there is an obvious tension between protecting the interests of the church from liability and fostering an environment of community within the congregation. However, depending on the state where your church is located, you may be obligated to comply with certain requirements before allowing volunteers to work with children; or your church’s insurance policy may require that you establish certain procedures to be followed by volunteers.
Before you implement a policy regarding background checks, there are two very important questions you should know the answer to: 1. Does my state impose any requirements on my church with regard to employees and volunteers? and 2. Does my insurance policy have any requirements with regard to my employees and volunteers? The answers to these questions will help you in determining whether your church is required to implement certain procedures, or whether you are free to adopt a policy based on what you believe will best protect your church in the event that something does go wrong. However, if there are certain requirements of your insurance policy, you should be careful to comply in order to avoid having your insurance company attempt to disclaim coverage to the church if something goes wrong. If your state imposes certain requirements, you should come into compliance as soon as possible.
Once you have decided to establish a policy with regard to volunteer/employee background checks, and you have determined whether there are any legal requirements or insurance company-imposed requirements, you may also want to consider the following issues:
1. What is your State’s current legal standard of care for a church or other organization that supervises children temporarily? It is likely the church would be held to the same standard as any other organization in terms of owing a reasonable duty of care to children when it provides supervision, even with volunteers. If there is case law where an organization has been found negligent because they did not do a background check before allowing someone to care for children, then it is likely your church could be found liable if you do not perform background checks and a volunteer who cares for a child were to do something that harms a child. Basically, in the event of a lawsuit, the question will be whether the church behaved reasonably. Reasonable is not an easily-defined term and is shaped by cases within your jurisdiction, but generally, doing nothing is not reasonable. Therefore, when drafting a policy, it will be helpful to know what courts in your state will consider to be reasonable.
2. Check with your insurance provider to determine what is covered and what is not. They may not be very clear about this, but the last thing you want is to find out that your insurance policy does not cover the actions of volunteers. It would be bad enough if the church got sued for something that a volunteer did, but it would be even worse if there was no insurance to cover the expenses associated with the lawsuit. Work closely with your insurance provider and ask them tough questions. (What if one of our nursery volunteers hurts a child intentionally? What if one of them touches a child inappropriately? Would this be covered? Where does it say that in the insurance contract? What about the same questions for our employees/elders/deacons?) Insurance companies are notorious for selling policies and taking money, but they love to deny coverage when something actually happens. (Who knew that a flood is somehow different than rising water, until Hurricane Sandy?) In short, there is nothing wrong with posing uncomfortable questions to your insurance company because you purchase insurance for the remote possibility that something will go wrong; not because you think something bad will actually happen. Based on input from your insurance company, you may want to ask whether they have any recommendations for what should be included in your policy. They may even have a sample policy for you to adapt for your specific purposes.
3. You may consider having parents sign a waiver for the various services provided by the church. The enforceability of a waiver varies from state to state, so it may not be enforceable but at the very least it could serve as proof that parents knowingly accepted certain risks (i.e., that children who are playing may ultimately be hurt regardless of the level of supervision and that the church cannot/does not guarantee the child’s safety). If you are going to use a waiver for certain activities, it is a good idea to develop a model form with blanks which can be filled in as needed. You may also want to indicate in your policy when a waiver will be required. Just remember, if you say you will do something in your policy, and you do not do it, it may be used as proof that your church behaved negligently by not following its own policies.
4. You may want to establish a policy governing certain church volunteers (such as nursery volunteers or Bible school teachers). As an example, the policy could require that volunteers avoid having only one person alone with children. It is always a good idea to have a second set of eyes in any situation because you may someday need to be able to refute any allegations that something inappropriate took place. It is much harder for someone to claim that something bad happened if there was another person around who can refute the claim. Cameras are also an option. They are not very expensive and some people feel uncomfortable being recorded, but it is definitely one method of protecting a church from false claims, and also may be a deterrent to inappropriate behavior. Again, laws differ from state to state and some states do not allow recording without consent of all parties being video-taped. Most places allow private organizations to video-tape without consent from anyone, but sometimes recording audio is a problem, so you should check with an attorney about what your rights are before you implement any type of security camera system.
5. One specific area of concern involves trips to the bathroom. For obvious reasons, it is likely a volunteer may escort a child to the bathroom and assist the child. There is not a single best method of handling this situation because your options are limited to leaving the child alone in the bathroom, having the child in the bathroom with the volunteer, insisting that two people go to the bathroom with the child (probably impractical), video cameras (almost certainly illegal in a bathroom), but obviously none of the options comes without risk. You may consider having parents inform you whether a child is independently toilet trained and then establish a policy that children should not be accompanied into the bathroom itself if the child is toilet trained. If children are not toilet trained, then the parents could be called to bring their children to the toilet. In some organizations that routinely deal with children, there are aides who assist children in the bathroom, and you can see why in that type of a situation it would be a good idea to be able to show that a background check was done on that person before they were allowed to carry out such duties. Although it may be impractical or too costly to perform background checks on all of the volunteers in the church, you may be able to limit your potential liability by establishing guidelines that reduce the likelihood of something going wrong or limiting the number of volunteers who work with children in such a sensitive setting.
6. Finally, lawsuits are extremely difficult for anyone who has to go through one. They are stressful, expensive, and can destroy relationships. Unfortunately, there is always a trade-off in creating an environment that appears to be overly concerned with protecting the organization versus an overly trusting environment that is ultimately found to be unreasonable and negligent. If you do end up in a lawsuit, the lawyer representing the church will be looking for documentation to prove whatever it is that you believe to be true. The best case scenario is when an organization can say, “We acted reasonably; see, here are the documents showing that we checked on everyone before we let them work with us; we established policies on what they can and can’t do; we enforced those policies when there were violations; and we did not allow those volunteers to continue working with the church because they failed to follow our policies.” That is, ultimately, you want to be able to demonstrate that, while the church cannot guarantee a child’s safety (nobody can), you took reasonable steps to protect the child from harm.
In closing, Theodore Roosevelt once said, “In any moment of decision, the best thing you can do is the right thing, the next best thing is the wrong thing, and the worst thing you can do is nothing.” This advice rings true for almost every circumstance. When dealing with a situation in which your church faces potential liability, doing nothing may prove to be the worst decision of all. Instead, being proactive by exploring the issue with an eye towards a reasonable solution, based on accurate information, is the best course of action. This can certainly be difficult, and your church members may be resistant to change. However, if you think that saying “but we have always done it this way” will protect you when something goes wrong, you may want to think again.
The truth is, now, more than ever, courts are looking to see whether your actions were reasonable based on today’s standards, not what was acceptable many years ago. While you may not want to change the way you have done things in the past, and you think that change will upset your congregation, you should consider the alternative of being unprepared when something goes wrong. It is always uncomfortable to prepare for the worst case scenario, but it will certainly be time well spent in the event something does go wrong.
 Although this article is intended to be informative, it is not a substitute for legal counsel and I strongly recommend you speak to an attorney about your individual church’s situation if you have questions.
Christopher W. Shishko is an attorney in New York who serves as general counsel to various municipalities, school districts, and organizations and frequently provides assistance with drafting policies for compliance with legal obligations and insurance company requirements. Ordained Servant Online, June 2014.