February 22, 2023
By Caryn Pass, Grace Lee, Janice Gregerson, and Ashley Sykes
Student safety and security is of paramount importance in independent schools. While the goal of a hiring process is primarily to find the best candidate for the position, it is imperative that schools also craft policies and develop processes that prioritize safety as a most fundamental obligation.
While schools strive for student safety in all aspects of school life, a thoughtful and thorough hiring process should serve as the first line of defense to keep unsafe adults from entering our schools in the first place. Adults working in independent schools—teachers, counselors, coaches, tutors, substitutes, bus drivers, administrators, food service personnel, and facilities personnel—will have regular and unsupervised interaction with students. Whether intentional or not, students will look to school employees with whom they interact as role models of appropriate adult behavior and as adults that they can trust. It is essential that all adults hired by an independent school be fully vetted to best prevent a breach of this sacred trust.
What follows is an examination of the factors independent schools should consider as they create hiring processes that prioritize student safety, while also complying with federal, state, and local laws governing employee hiring.
The Job Posting
Before posting an open position, independent schools will want to pause and consider whether the position actually needs to be filled. If so, review the content of the job posting to determine whether the duties, responsibilities, and expectations outlined are truly reflective of the expectations that the school has—or wants to have—for the position and any candidate for the position. The job posting serves to communicate expectations to potential applicants, and while it may not dissuade unqualified candidates from applying, the school will be better positioned to justify (and potentially defend) a determination not to hire a candidate whose skills, knowledge, and experience are not in alignment with the needs of the school as communicated in the posting.
Based on the increasing focus on pay equity and pay transparency, certain states are beginning to mandate that employers include salary ranges in job postings. Schools will need to determine whether their state or local jurisdiction has passed such a law and what information must be included in the job posting to be in compliance.
The Employment Application
In creating or refining the hiring process, consider the employment application to be a powerful tool that can ensure the collection of accurate information about an applicant. While a school will expect candidates to submit a résumé, it is important to be mindful that it is developed by the candidates themselves and may include only selected information while omitting other, crucial information, such as prior experience, dates of employment, etc. By requiring candidates to also complete an employment application developed by the school, independent schools can ensure that they are consistently collecting certain types of information from all candidates at some point in the application process. In addition, a good employment application will require the candidate to sign and affirm that the information they have presented is true and complete to the best of their knowledge.
In developing an employment application, it is important to understand whether the school is in a state that has prohibited prospective employers from inquiring about salary history, as many states have done in recent years. Similarly, schools should review their employment application with their counsel to identify any other questions on the application itself that would be problematic or tend to create legal liability.
The Interview Process
Once an independent school has a pool of candidates, it will then want to use consistent criteria to determine which candidates will be asked for interviews. From there, schools will want to ensure that those school employees who will be conducting the interviews are trained in how to conduct an interview. For schools that host candidates for a full day of interviews with other faculty and possible interactions with staff, it is important to train all school employees on what they cannot ask a candidate during an interview, including information that may implicate federal and state anti-discrimination laws.
To conduct effective interviews, consider creating a consistent list of interview questions, designed to elicit specific information regarding a candidate’s ability to carry out the duties and meet the expectations of their position. Ensure that all interviewers take good notes to allow for meaningful discussion of and deliberation over a candidate’s qualifications and to create a contemporaneous written record of what was asked and how a candidate responded. Interviewers should also be trained on the importance of taking notes only on relevant information and avoiding notes that might create a perception of discrimination based on a protected category.
Effective Background Checks
When schools think about background checks for prospective employees, it is all too common to think only about criminal background checks. A criminal background check is just one component of a thorough process that works to capture a more complete picture of a candidate.
Criminal Background Checks: State law generally dictates whether and when schools can conduct a criminal background check. Many states have adopted “ban-the-box” laws, which prohibit schools from conducting criminal background checks during the initial stages of the hiring process or before a conditional offer of employment has been made. Some states exempt schools from this law. It is important to understand when state law permits a school to inquire into criminal history, to avoid creating liability exposure resulting from inquiring too early. A thorough criminal background check should include a search of all federal, state, and local records, using all of the names and addresses used by an applicant for at least the last seven years. This search is most effectively conducted by a third-party background check company.
Employment History Checks: Schools will also want to conduct full and complete employment history checks, carefully reviewing a candidate’s dates of prior employment and determining whether there are any gaps in employment. Further still, schools should verify a candidate’s employment history by calling prior employers to confirm that the candidate was employed there during the period the candidate has indicated in their application. To ensure consistency in the process, have at the ready a set of prepared and vetted questions to ask, which would include, among others, whether the candidate is eligible for rehiring.
Of note, some states have mandated this process for school employees, creating an affirmative legal obligation for a candidate to disclose all or a portion of their prior employment working with minors, and an affirmative legal obligation for schools to contact every one of such prior employers. Generally, these laws mandate that schools inquire whether the candidate has been the subject of an investigation of misconduct regarding their interactions with children or whether they have been asked to resign because of allegations of misconduct. The rationale behind such laws is sound—it is important to understand whether a candidate was dismissed or asked to leave as a result of concerns regarding their interactions with children. Schools will want to partner closely with their school counsel to assess whether their states have such laws and, if so, to understand what is required.
In this process, it is also important to be mindful that certain states have made employment status a protected category, meaning that a long period of unemployment cannot be used against a candidate in the hiring process. However, even those states that protect employment status allow for exceptions, including permitting a prospective employer to inquire into the circumstances surrounding a separation of employment, for example. Here, too, it is important to consult with school counsel to understand whether there are any limits to assessing employment history.
Reference Checks: Reference checks are commonly used to get a better picture of whether a candidate will be able to carry out the duties and meet the responsibilities of the position for which they have applied. In conducting reference checks, it is important to ask questions designed to determine whether the reference has actually had the opportunity to observe the candidate’s performance and elicit their assessment of the applicant’s performance. Consider asking a reference for specific examples of the candidate’s performance, in lieu of relying on broad, sweeping generalizations. In addition, ask the reference whether they have any concerns about the applicant working with minors or following school policies.
Social Media Checks: As a final component of the candidate background check process, consider conducting or having a third-party service conduct social media checks. As independent schools know all too well, both parents and students can, and often do, conduct their own Google and social media searches of both new and current employees. In certain instances, such searches have resulted in a school learning information that would have been important to know in the hiring process, including whether the candidate will be able to serve as an effective role model for students. In some instances, independent schools have had to rescind offers made or terminate newly hired employees, creating a difficult situation for all involved that could have been avoided.
Other Checks: Independent schools should also check the sex offender registry as part of a thorough background check process. In addition, any applicant who may be driving a student should undergo a driving records check. Finally, any employees with access to or control over financial information or school accounts should undergo a credit check.
Ensuring that a consistent and thorough hiring process is in place is one way for an independent school to hardwire student safety into its protocols while also ensuring it is operating in a manner that is consistent with evolving best practices and the legal landscape.
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Caryn Pass has a nationwide practice advising independent schools in virtually every type of legal matter. Caryn’s philosophy is that effective legal counsel must be consistent with a school’s culture. Accordingly, she immerses herself in her clients’ operations, missions, and environments. Caryn takes a proactive approach when assisting schools.
Grace Lee focuses her practice on employment law, risk management, and other compliance and regulatory matters that impact independent schools and nonprofit organizations. Grace works collaboratively with business officers, board members, human resources professionals, and heads of schools to advance the mission, priorities, and culture of institutions while meeting business needs and mitigating potential liability.
Janice Gregerson focuses her practice on employment counseling and independent school law. Janice represents a variety of clients, with a primary focus on independent schools. She works collaboratively with her clients, actively joining their teams to ensure she is intimately familiar with each organization’s operations, mission, and environment.
Ashley Sykes focuses on counseling clients in all aspects of employment and independent school law matters. Ashley brings a background in compliance, privacy, and operations to her practice, helping clients to ensure that their internal policies and procedures comply with applicable state and federal laws.