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Risk Management and Negligent Hiring Under New Federal Law
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.
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.
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.