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
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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 law
2. Supervision factor
3. Placement Issue: Nova Southeastern
University
4. 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 Act
E. Non-Discrimination Laws
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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
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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 provided
misleading recommendation to another school, damages for
injured student victim.)
What about “No Comment” Policy?
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Liability Issues in
Providing 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 Criminal
Background 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 Criminal
Background 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 Criminal
Background 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???
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