Marti Anne Ellermann Senior Counsel SUNY CDO Conference June 12, 2008

1. Helping Students Get Jobs Without Getting Sued: Avoiding Legal Liability for Career Development Officers. Marti Anne Ellermann Senior Counsel SUNY CDO Conference June 12, 2008

2. Topics: ● Liabilities associated with internships ● Providing references without liability ● Background checks ● Recruiting on campus ● Questions and Answers

3. 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 law 2. Supervision factor 3. Placement Issue: Nova Southeastern University 4. Is student an “employee”? Olsson v. Nyack Hospital

4. Liability and Student Internships Types of Legal Liabilities (continued) C. Americans with Disabilities Act D. Fair Labor Standards Act E. Non-Discrimination Laws

5. Basic Legal Principles A. Liability is a function of duty B. Generally, a college or university has no duty to protect students ● Doctrine of in loco parentis is no longer applied to adult students C. Also, students are usually not agents of the institution

6. 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

7. 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

8. 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.

9. 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.”

10. 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

11. Avoiding the Land Mines of References and Reference Checks → Providing References → Background Checks

12. 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 dutytodisclose. Case Study: Randi W. v. Muroc Joint Unified School District (Calif., 1997) (Liability imposed on schools districts that provided misleading recommendation to another school, damages for injured student victim.) What about “No Comment” Policy?

13. 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.

14. 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

15. 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

16. 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

17. 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))

18. 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))

19. 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?)

20. 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

21. 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

22. QUESTIONS???