A duty to inform: delay reporting allegations of child or elder abuse even—for internal investigations—and you could land in jail - Safety & Security Agenda

HR Magazine, Sept, 2003 by Diane Cadrain

When Lissa Bobet, H R manager for the Osceola County Public Schools in Florida, heard that Matthew Rossillo, a second-grade teacher at Kissimmee Elementary School, was playing a "weird math game" with female students, she followed school procedure: She asked school investigations specialist Sonia Drudge to look into it.

When police were eventually informed, they determined that Rossillo's math game was "weird" enough that they arrested him for lewd and lascivious molestation of a child under 16.

Despite her good-faith effort to investigate Rossillo, Bobet also was arrested--along with Drudge and principal Kenneth Myers. All three were charged with failure to report suspected child abuse, which carries a penalty of a fine and up to one year in jail.

The reason for the arrests: All three opted to conduct an internal investigation before notifying police. Their decision might seem second nature to HR professionals--it is, after all, how most employee complaints are handled. But in this case, it sparked a nightmare for Bobet, Drudge and Myers.

The potential for such legal problems is not limited to the Florida schools; rather, Hit professionals in a number of states--and in a surprising number of industries--are at risk. As national statistics show that both child abuse and elder abuse are on the rise, HR managers are increasingly exposed to civil and criminal liability for failure to report such incidents.

State law may make HR managers "mandated reporters" those required to report abuse allegations, or there may be mandated reporters in the workforce. Either way, HR needs to learn about this growing problem and how to both avoid liability and prevent the tragedy abuse.

Fundamental Questions

Being designated a mandated reporter raises a number of questions for HR professionals, including:

Who is a mandated reporter of child abuse? Most states designate health care workers, school personnel, day-care providers, social workers, law enforcement officers and mental health professionals. In many settings, such as schools, child care facilities and hospitals, the list can include HR managers or others ill the workforce.

"It's up to state lawmakers to designate who must report, but there is a great deal of uniformity among the states," says Howard Davidson of the American Bar Association Center on Children and the Law. Even so, it's important to check the law in your state.

For example, 18 states require any citizen to report suspected child abuse or neglect. Those states are Delaware, Florida, Idaho, Indiana, Kentucky, Maryland, Mississippi, Nebraska, New Hampshire, New Jersey New Mexico, North Carolina, Oklahoma, Rhode Island, Tennessee, Texas, Utah and Wyoming.

In these states, HR managers in companies with on-site child care facilities may be required to report alleged abuse, even if an outside contractor runs the facility.

Almost a quarter of the states--Alaska, Connecticut, Illinois, Iowa, Massachusetts, Nevada, New York, North Dakota, Sooth Carolina, South Dakota and Wisconsin--designate substance abuse counselors as mandated reporters.

Several states, on the lookout for child pornography', require reports from commercial film or photo processors. Those states are Alaska, California, Colorado, Illinois, Iowa, Louisiana, Maine, Missouri, Oklahoma and South Carolina.

Two states--Missouri and South Carolina--designate Internet service providers and computer technicians as mandated reporters.

Who is a mandated reporter of elder abuse? Most states require the reporting of abuse of vulnerable adults. These laws are modeled after the child abuse laws.

Most states name health care professionals as mandated reporters of elder abuse. Many also name law enforcement officers, psychologists, dentists and social workers.

What are the potential legal penalties for failure to report child or elder abuse or neglect?

* Criminal prosecution. In 42 states, there are criminal consequences--such as a misdemeanor charge or a fine--for failure to report. Fines may range from $50 to $10,000, depending on the state and the severity of the abuse. Imprisonment may range from six months to four years.

* Loss of licensure or other professional disciplinary action. This varies by state, but in highly regulated professions--such health care and education--failure to report could lead to loss of one's state license to practice.

* Civil liability. Those who fail to report also may face civil lawsuits seeking redress for damages. If the mandated reporter is an HR manager, the company--and possibly the HR manager--may face liability for failure to report suspect actions by employees, as well as negligent hiring and negligent supervision.

Damages in a civil lawsuit--particularly for redress of pain and suffering--are potentially far higher than criminal fines.

What if the report is unfounded?

Most states have a statute that protects people who, in good faith, report suspected child or elder abuse or neglect. The statutes may protect reporters from criminal or civil liability, or both. Several states also provide immunity not only for the original report, but also for any subsequent judicial proceedings.