AB506 Creates Challenges for Ethnic Churches, and Exposes Other Concerns

I recently spent over an hour in a Zoom meeting with leaders of the Great Commission Association of Southern Baptist Churches which serves the central coast region of California. Joining the meeting were representatives of HR Ministry Solutions, Fritz Hahn of Ministry Pacific Insurance Financial Services, and Gregory Love, founder of the MinistrySafe organization. The subject: Compliance with AB506 and the Live Scan requirement.

We touched on the subject of identifying and reporting child abuse and neglect, and what we believed is even more important for churches – child sexual abuse awareness and prevention.The law does require “mandated reporters” to complete a four-hour training and volunteers to complete a two-hour training. Church & Ministry Compliance Consulting does not offer abuse and neglect training but we can help with Policies & Procedures – use the green "Contact Us" button at the end of this post. Instead, we strongly recommend MinistrySafe's California-enhanced Child Sexual Abuse Awarness Training, which adds recognition and reporting of child abuse and neglect to the curriculum for full compliance with the volunteer training requirement of AB506. We also discussed the need for Policies & Procedures and the fact that there is no published “curriculum guide” that sets the baseline for required training content or recommended Policies & Procedures.

I served for six years on the California Department of Insurance’s Curriculum Board (2014-2020) and was a member of a number of subcommittees that were responsible for reviewing and revising entire course outlines for a number of required prelicensing and mandatory continuing education courses for insurance agents, brokers, and adjusters in California, most of whom must take a 52-hour course and pass a written exam before being licensed and complete at least 24-hours of subsequent continuing education every two years to maintain our licenses. The Department of Insurance also has specific guidelines for content and time spent on topics – and actual word-count requirements – for virtual training classes and self-study courses, and those are reviewed by Department Analysts.

Unfortunately, there is no such oversight board for child abuse and neglect courses. Training may be obtained through the state’s website and from other providers, but there is no established process to evaluate or certify any course’s content. One particular training provider is heavily promoting its one-hour training course for churches purporting to comply with AB506 that very likely falls far short of the two-hour course requirement and obviously does not meet the requirement for the four-hour training.

AB506 is pretty straightforward when it comes to background checks . . . EVERY church employee, regardless of what their role is at the church, and every child-facing “regular volunteer” must submit fingerprints via the Live Scan system. Although the Live Scan check is limited to California offenses and convictions, a church could opt to pay the extra fee for additional federal screening.

Unfortunately, the Live Scan background check does NOT delve into the sexual offender registries, so churches and ministries trying to create and maintain safe environments for their children and children’s programs have long been advised to conduct more thorough background checks that search the various national sexual offender registries. It’s a highly significant step in the direction of “due diligence” . . . or what an attorney would label “standard of care” . . . and it goes beyond the low bar of AB506 in the effort to protect children from abuse and neglect. But these background checks do not satisfy the Live Scan requirement, and churches ought to decide to do both.

Because the definition of “regular volunteer” is highly ambiguous – a person who serves “16 hours per month or 32 hours per year” – and the exact time spent serving is not necessarily easy to track, my guidance to churches from Day One has been “train and Live Scan everyone who works with children.” Although the training can be free, there is a cost for Live Scan . . . a “rolling fee” for everyone ($5 to $50), and the $29 fee (or more) for employees’ background checks (there is no fee for volunteer submi

A Live Scan request form asks for a variety of personally identifiable information: name, address, date of birth, height, weight, hair and eye color . . . and Driver License/ID and Social Security numbers. It’s the last two of these items most undocumented folks don’t have. California will issue Driver Licenses to undocumented immigrants to make it easier for them to obtain auto insurance, but the IRS controls and issues Social Security numbers. Neither the state nor the IRS reports any undocumented person’s immigration status to Customs & Immigration Services (“USCIS”) or Customs & Border Protection (“CPB”).

This was one of the primary concern of the GCASBC leaders. The question: “How do these persons and their churches comply with AB506's Live Scan requirement?”

With some 39-million persons residing in California, this is not the only issue that confronts many churches here and across the United States, and this was a critical element of the Zoom meeting. Ethnic churches – such as Hispanic, Chinese, Korean, Vietnamese, Russian, Ukrainian, and any of the other 70 or more cultural groups that exist – are many times being pastored and attended by persons who are “undocumented” when it comes to their residency status.

The training part is not necessarily difficult. Anyone can take the state’s free online training . . . it’s available in English and Spanish at www.mandatedreporterca.com. The state’s website merely asks for a person’s name in order to issue a certificate of completion when training is completed. Live Scan is another story altogether.

“What if a person does not have a Driver License or Social Security number?” According to several Internet websites, a Live Scan request will not normally be rejected by the California Department of Justice if there is no Driver License/ID number or Social Security number, but most Live Scan operators (the persons who submit digital fingerprints to the DOJ through Live Scan) will not submit the request without one or both pieces of information out of concern for any liability issues they may face because they have no way to positively identify the submitter. Churches in this situation are caught between the proverbial rock and hard place. They understand the need and want to protect their children, but does it mean they have to stop ministry to children? It might.

Partial compliance with AB506 that fulfills the training and Policies & Procedures isn’t going to be good enough in a court of law or for an insurance company. Failure to fully comply with AB506’s Live Scan requirement could cause a church to not have the full protection it needs in the event of a claim of sexual misconduct involving a child. And misrepresenting on an insurance application that all workers and volunteers have complied with AB506 requirements when they cannot complete a Live Scan check is worse yet, because it will almost certainly result in the insurance policy being voided in the event of a misconduct claim. A church cannot afford to be uninsured for liabilities.

To continue conducting children’s ministry appropriately requires FULL COMPLIANCE with all aspects of AB506. Any attempted “workaround” will most assuredly come back to bite the church in the worst possible way.

And AB506 is not the only concern expressed by these churches, particularly when it comes to employing a pastor. Many churches ask how they can pay (or have been paying) pastors and other workers known not to be legal residents of the U.S. despite the fact that they cannot provide the necessary documents required to prove a person’s right to work in the U.S., one of which is a Social Security number. Federal law requires that every employer who “recruits, refers for a fee, or hires an individual for employment” in the U.S. must have a signed and verified Customs & Immigration Services’ Form I-9, Employment Eligibility Verification in every employee’s personnel file. Notably, Form I-9 is not submitted to the USCIS – but it must be kept on file and made available upon demand if USCIS agents were to come to the church looking.

Churches are supposed to verify the Social Security number of every employee. Those that fail to obtain and preserve Form I-9 along with copies of the documentation provided from every employee are not demonstrating a “good faith effort” to comply with the law. They are violating federal law, sometimes willfully, and it is a crime to compensate anyone who cannot prove their legal right to work (8 U.S. Code §1324a) or to continue to employ them after determining they do not have the legal right to work in the U.S. The fines for violating this law can range from a minimum of $250 to as much as $10,000 per worker depending on the circumstances.

Nevertheless, undocumented workers who earn money in the U.S. must also file and pay income tax. So how do they do this if they are not eligible for a Social Security number? They must apply for and receive an Individual Taxpayer Identification Number (“ITIN”). This is done by submitting Form W-7 and a current income tax return (Form 1040) to the IRS and providing very specific documentation proving identity, date and place of birth, and current citizenship – usually original documents, not copies – and often requires the assistance of competent legal counsel.

An ITIN DOES NOT authorize a person to work in the U.S., it only provides a means to pay personal income tax, which could be of great importance for someone who is trying to prove a history of residency. The IRS does not share Form W-7 information with the USCIS, and a person who files Form W-7 will not be visited by the CBP as a result. Form W-7 and instructions as well as Form I-9, Form I-9 Supplement, and instructions can be downloaded below.

The path to an ITIN may actually be a bit easier for a pastor, because there is an “exception” to some of the documentation required for persons whose wages are not subject to income tax withholding. Under the Internal Revenue Code a ministers’ wages fall into this category. An undocumented pastor needs to be paying income tax on his wages, so he needs an ITIN. Still, having an ITIN does not solve the challenge of compensating an undocumented pastor or otherworker. The church needs to understand that it is violating federal law if it compensates its pastor or other undocumented workers in any way (“wages,“ “love gift,” “special offering,” “allowance,” “stipend,“ “honorarium,“ “commission,“ “award,“ etc.) It would simply permit persons with an ITIN to more easily submit their Live Scan request and the church would be a step closer to full compliance with AB506.

One additional small window of opportunity may be available to some ministers. An illegal immigrant who is serving as a minister and can prove he or she arrived in the U.S. prior to January 1, 2015, may be eligible for “Special Immigrant Status” by submitting USCIS Form I-360. Obtaining “Special Immigration Status” may open the door to legal residency. This is a highly complex path and probably requires the assistance of professional legal counsel specializing in immigration law – definitely not a D-I-Y project and far beyond the abilities of Church & Ministry Compliance Consulting.

As always . . . feel free to contact us if you have any questions or need help . . .

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Note: I-9 Forms have not yet been updated after 10-31-2022. Employers are instructed to continue using this version until USCIS provides an updated form.