|
by Jody A. Gorran,
Programs Director, National Foundation to Prevent Child Sexual Abuse
Since October 9, 1998, when the Volunteers for Children
Act, was signed into law by President Clinton as Public Law 105-251 and
amended the National Child Protection Act of 1993, if a volunteer or employee
of an organization sexually molests a child in his care and if it can
be shown that this volunteer or employee had been previously convicted
somewhere in the United States of a relevant crime, the organization may
be held liable under the legal theory of negligent hiring.
Qualified Entity
Under the law, a "Qualified Entity" which is
any business or organization, whether public, private, for-profit, not-for-profit
or voluntary, that provides care, treatment, education, training, instruction,
supervision, or recreation to children, the elderly, or individuals with
disabilities, now has the ability, under the National Child Protection
Act of 1993 as amended by the Volunteers for Children Act, to request
fingerprint-based national criminal history background checks through
the FBI of their volunteers and employees.
Access to Criminal Records
Prior to October 9,1998, these "Qualified Entities"
did not have the legal ability to request these fingerprint-based national
criminal history background checks through the FBI. The NFPCSA wants every
affected organization, particularly those who deal with children, to immediately
start requesting them. If a current or potential volunteer or employee
has a relevant criminal history, he must be prevented from having access
to children, the elderly, or the disabled through these organizations.
Such a person must not be placed in a position where he may easily victimize
someone again.
Courts are increasingly holding employers liable for
the violent acts of an employee on grounds of negligent hiring. In making
such a finding, a court must conclude that the employer violated its duty
of care in the hiring of the employee or volunteer. Actions against an
employer for negligent hiring will turn on the alleged breach of the duty
of care owed by the employer to the injured party.
Duty of Care
There is a duty of care whenever there is a foreseeable
risk of injury to others arising from the failure to take the necessary
steps to prevent such injury. Because these "Qualified Entities"
provide care to children, the elderly and the disabled, their duty of
care is quite high because these are the most vulnerable groups in our
society.
The NFPCS believes the very least an organization
can do as part of risk management in its hiring process, is make certain
that their volunteers and employees who provide services to children,
the elderly, or the disabled, do not have relevant criminal records. Since
October 9, 1998, these "Qualified Entities" have the lawful
ability to request fingerprint-based national criminal history background
checks.
More Information
For information on risk management, negligent hiring,
and how your organization can get started doing fingerprint-based national
criminal history background checks of your volunteers and employees, visit
our Web site at www.childsexualabuse.org.
Originally published in the 2000 Winter issue
of The CampLine.
|
