Association of Christian Schools International PO Box 65130


Colorado Springs CO 80962-5130


John L. Cooley, Esq, CooleySublett PLC 2965 Colonnade Dr., Suite 200, Roanoke VA 24018 540-343-2451 | www.cooleysublett.com


John served as a Christian school administrator for 10 years before practicing law. He charges a flat fee of $112.50 for up to 30 minutes of legal work by telephone.


Closing Arguments Background and Credit Checks


Q: A:


Our school conducts criminal background checks on prospective employees. The school is considering implementing a policy of requesting credit reports for individuals the school is considering hiring. However, I have heard that there may be legal issues with both to these. Can you advise our school board regarding the issues presented in both of these areas?


As you are aware, a number of jurisdictions require schools to conduct criminal checks


on those employees who have access to students, such as teachers. Those states continue to require criminal background checks. However, the Equal Employment Opportunity Commission (EEOC) has advised in its enforcement guidance that use of an individual’s criminal history in making employment decisions may, in some instances, violate Title VII. Not treating all prospective employees equally can result in liability. Moreover, the EEOC has taken the position that use of criminal backgrounds may result in disparate impact; that is, it may disproportionately impact some individuals in a protected class. The EEOC has sued over this theory, but the federal Fourth Circuit Court of Appeals has ruled against the EEOC. Our advice: despite the adverse ruling against the EEOC, the school still needs to follow state requirements and ensure that it equally applies its policy.


The second area is somewhat more complicated depending on the particular state jurisdiction of the school. For example, a number of states have legislation that restricts the use of credit reports. Thus, it is imperative that the board


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determine whether there is any state restriction (and, if so, the extent of the restriction) before implementing any credit report check. In addition, the Federal Fair Credit Reporting Act (FCRA) has its own set of requirements. While the FCRA does not prohibit using credit reports in employment decisions, there are specific criteria that an employer must meet. For example:


• Tell the applicant or employee you might use the information for decisions about employment. The notice must be in writing and in a standalone format, and cannot be in an employment application.


• Obtain written permission for the background check. The notification can be used for this.


• Notify the company from which the report is obtained of the notice and permission, etc.


• Tell the applicant if you plan to reject him or her due to the contents of the report, and provide a copy of the credit report and an adverse action notice.


The school board must approach criminal and credit report background checks with all these issues in mind.


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