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Helping Students Get Jobs Without Getting Sued: Avoiding Legal Liability for Career Development Officers.

Marti Anne EllermannSenior Counsel

SUNY CDO Conference June 12, 2008

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Topics:

● Liabilities associated with internships

● Providing references without liability

●Background checks● Recruiting on campus● Questions and Answers

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Liability and Student Internships

Legal Liabilities Associated With Student Internships

Types of Legal Liabilities A. Injuries to Student B. Student’s Acts or Omissions

1. Contract law2. Supervision factor3. Placement Issue: Nova Southeastern

University4. Is student an “employee”? Olsson

v. Nyack Hospital

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Liability and Student Internships

Types of Legal Liabilities (continued)

C. Americans with Disabilities Act

D. Fair Labor Standards ActE. Non-Discrimination Laws

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Basic Legal Principles

A. Liability is a function of dutyB. Generally, a college or university

has no duty to protect students● Doctrine of in loco parentis is no

longer applied to adult studentsC. Also, students are usually not

agents of the institution

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Basic Legal Principles (continued)

D. A college or university’s duty to a student arises out of the particular relationship between the institution and the student

Examples:● Premises owner/invitee● Landlord/tenant● Employer/employee● Teacher/student● Coach/student athlete

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Basic Legal Principles (continued)

E. Particular duties may also arise from the implied contract between the institution and the student

F. To decide whether a college or university has liability to a student, the courts will scrutinize the facts to determine if there is a “special relationship” between the student and the institution● A key factor is whether the student is dependent on the institution at the time

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Case Study

Nova Southeastern University v. Gross (Fla., 2000)

Facts –23 year old grad student at Nova required to complete 11 month internship (“practicum”) for degree. Nova provided list of approved practicum sites. Student selects 6 possible sites and is placed by Nova at one. One evening when leaving her placement, Gross was abducted from site’s parking lot and sexually assaulted. There was evidence that Nova had been made aware of a number of other previous criminal incidents at or near the parking lot in question.

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Holding

Since Nova had control over the students’ conduct by requiring them to do the practicum and by assigning them to a specific location, it also assumed a duty of acting reasonably in making those assignments. Where the university had knowledge that the internship location was unreasonably dangerous, it should be up to the jury to determine whether the university acted reasonably in assigning students to do internships at that location.

The duty could include, but is not necessarily limited to, warning of the known dangers at this particular practicum site.

It cites a 1994 Massachusetts case: “Students could reasonably expect that the school’s placement office would make some effort to avoid placing students with an employer likely to harm them.”

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Distinguish Between Injury To Student Intern and Injury by Student Intern

Protection Against Liability for Injury to Student— General principles of negligence— Workers compensation— Health Insurance— Releases ?Protection Against Liability for Injury by Student— Liability insurance— Affiliation agreements— Principles of agency

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Avoiding the Land Mines of References and Reference Checks

→ Providing References

→ Background Checks

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Liability for Negligent Referral – An Evolving Tort

Elements:1. The employer foresees that a present or former employee presents a substantial risk of harm to third parties;2. In spite of the foreseeable risk, the employer provides a reference or writes a letter of reference and 3. A special relationship exists between the parties.

Then, there is a limited duty to disclose.

Case Study: Randi W. v. Muroc Joint Unified School District(Calif., 1997) (Liability imposed on schools districts that providedmisleading recommendation to another school, damages forinjured student victim.)

What about “No Comment” Policy?

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Liability Issues inProviding References

To employee/student – ● Defamation: Qualified privilege exists for good faith actions, communications limited to

someone with a need to know, non-malicious.● Negligent misrepresentation: Bivas case.

To third parties –● Negligent hiring.● Negligent Referral: Is there a duty not to be

misleading? Maybe if foreseeable risk of harm.

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Liability for Negligent Hiring

● Failure to check background adequately: generally no duty to conduct background check, however…

● Failure to act appropriately on information received.

● Murray v. Research Foundation: employer knew or should have known of the employee’s propensity for the conduct which caused the injury.

● Risk factors- Nature of job- Policy and procedure on reference checks may

heighten risk- Was injury foreseeable – nature of criminal history

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Liability Issues in Providing References (continued)

Practice pointers - written consent/release - verify right to request reference - supervisor and faculty training - stick to personal knowledge, factual, job-related - be consistent - FERPA waiver - Avoid discrimination by not disclosing protected class information

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A Little Bit About CriminalBackground Checks

WHEN - ● Pre-admission ● Pre-internship/externship ● Pre-employment

WHY – ● Accrediting agency, state or other legal requirements ● Safety of campus community

HOW – ● General database checks (Google, Lexis,

Choice Point, etc.) ● Local vs. State vs. Federal ● Criminal history checks: statutory authority

required ● Use of third parties and FERPA

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Handling CriminalBackground Check Information

● Fair Credit Reporting Act (FCRA) as enforced by the Federal Trade Commission

● “Consumer Reporting Agency” – any business that “for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in…assembling…information on consumers for purposes of furnishing consumer reports to third parties.” (15 U.S.C. Section 1681a(f))

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Handling Criminal Background Check Information

(continued)

● “Consumer Report” – “any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for: …(B) employment purposes.” (15 U.S.C. Section 1681a(d)(1)(B))

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Handling Criminal Background Check Information

(continued)

● Primary limitations: - Accuracy issues - Privacy issues

- FCRA only applies if conducted by CRA - Time issues (5,000 applicants for 350

openings at university – do you have time to conduct 5,000 background checks and ensure their accuracy?)

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Liability and CriminalBackground Checks

To prospective or current employee- discrimination- negligence, defamation, invasion of privacy

To third parties- failure to conduct background

check- negligent hiring notwithstanding

background check

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Practical Issues

● Notice● Use of information – what are disqualifying

results?● Confidentiality of information: need to know;

shredding● Non-discriminatory treatment: not prohibited but

must treat all applicants alike● Assessing the results

- nature of criminal offenses- How does it relate to institution’s interests?- NYS Corrections Law standards

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QUESTIONS???