You must be sure your screening practices adhere to the ever-changing laws designed to balance the right of individual privacy with the need for organizations to have access to information. Due diligence does not stop at merely having a screening program in place that ensures you have quality information. Accountability means ensuring that the rights of the individuals you screen are protected under the FCRA and other consumer reporting laws passed by various states while satisfying the need to gather meaningful and appropriate factual information.


Christian leaders managing screening programs have multiple responsibilities: pursuing both annual and position-specific screening, providing compliant disclosures and authorization forms, offering meaningful notice and opportunity to correct practices (“adverse action” and “consumer dispute”), and wisely choosing third-party screening firms.


When implementing background screening programs, accountability to the people we serve requires us to be familiar with the Equal Employment Opportunity Commission (EEOC) and Housing and Urban Development (HUD) agency interpretation and guidance as well as other international, federal, and state legal obligations. Some of the topics covered by these various entities and laws include properly using criminal records, operating a clearly defined and documented screening program, eliminating discriminatory practices, protecting the rights of those who are evaluated, and implementing proper disclosure and authorization procedures.


Penalties Philip Scott, Esq.


Several reports a decade ago estimated the annual cost of public school teacher turnover in the U.S. to be above $7 billion annually, with the costs of finding, training, and replacing each teacher averaging 20% of that teacher’s annual salary.* While these numbers do not reflect the cost for Christian schools, they do illustrate a near-universal truth in the U.S. education market: it can be a long, hard, expensive process to find qualified teachers and leadership. Often the most difficult situation is when the teacher or administrator leaves after school has started for the year. What qualified teachers there were over the summer break are now gainfully employed elsewhere. Further, time is of the essence to ensure the students and staff have continuity in the remaining months of the school year. For these reasons, and many more, Christian schools want to keep quality staff once they have identified them and brought them onboard. One tempting strategy is to add penalty clauses for staff members who terminate their employment agreements.


As a matter of public policy in contract law—employment or otherwise—one is generally not allowed to punish a party for breaking a contract. Rather, the intent is to make both


62 | 27.3


parties whole and in the same position they would be in if the contract had never been violated. Thus, in the context of employment agreements, it is generally not enforceable to include a clause putting a financial penalty on a staff member for terminating a contract before he or she has fulfilled it. However, the law does allow a liquidated damages clause. The Restatement (Second) of Contracts §356 (1) encapsulates the legal theory when it states:


Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty.


A liquidated damages clause provides for a monetary pay- ment when the agreement is breached and the damages are difficult to determine at the time the agreement is made, but the agreed-upon payment is a reasonable esti- mation of the actual or potential cost estimated at the time the agreement was made.


Background screening is an integral part of every organization in today’s marketplace. Our biblical and legal obligations call us to exercise due diligence in our decision making. It is important to understand the biblical and legal foundations for establishing a baseline for how we screen our people. Simply doing the minimum required does not satisfy our biblical calling.


We should always remember, as the Apostle Paul urged us, to pursue excellence: “Finally, brothers and sisters, whatever is true, whatever is noble, whatever is right, whatever is pure, whatever is lovely, whatever is admirable—if anything is excellent or praiseworthy— think about such things” (Philippians 4:8).


Christians should pursue best practices in screening programs and practices in order to answer that call to excellence. There is incredible power in a screening program that is based on a biblical view of due diligence and accountability.


Nancy Lynn Roberts, Esq. (nancy.roberts@trak-1.com) is the owner of Trak-1, a nationally accredited professional background screening firm. She obtained her BA from Pomona College and JD from the University of Oklahoma. Roberts serves on the accreditation body for the National Association for Professional Background Screeners overseeing their audit/accreditation inquiries and is a past chair and previous board member. She is author of Progress Not Perfection: A Meaningful Journey with Lasting Joy (One Seed Press, 2012).


Reprinted with permission from Outlook Magazine, winter 2016 (www.outcomesmagazine.com).


Can They Do That? The Limits of Employment Contract


© 2017 by the Association of Christian Schools International


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