Employers are showing more interest in continuous, real-time
employee screening. Most companies screen for red flags in their employees’
work, legal or financial history once, before hiring. However, if an employee
commits a crime, has a license revoked or loses work authorization after being
hired, the employer may never find out.

Uber is the most high-profile company to go public with
its plans to conduct continuous background checks on its on-demand
workforce. The company has been pushed to do a better job of screening its
drivers following recent accounts of alleged misconduct. After updating
their screening tools, Uber now receives continuous updates about drivers’
records, including new criminal violations and license suspensions. The
subscription looks for and identifies changes in their background to mitigate
risk for companies. If new information launches a full background check, the
worker is also notified, he said. “If a candidate believes their report is
inaccurate or incomplete, they can initiate a dispute. In the future, the
technology could allow candidates who previously were disqualified to resurface
after enough time has passed from prior traffic violations.”

Rising Trend

Continuous background checks are possible
primarily because more police departments and court systems have moved to
online records systems, as well as due to advances in technology to scan
the Web and analyze data. The trend is spreading: we are seeing more industries
with access to vulnerable people or where direct, one-to-one consumer access is
a part of the employee’s or contractor’s scope of work, such as manufacturing
and retail, government and public school systems.

Important Caveats

“Employers should think hard and perform a
cost-benefit analysis before implementing the technology, and be sure to
understand what you’re really paying for. Information from online databases are
not as reliable as information gathered directly from the source,” said Spencer
Waldron, an employment attorney in the Irvine, Calif., office of Fisher
Phillips. “Currently, there is no empirical evidence that shows continuous
screening is advantageous to employers,” he said. “Whether it is a
cost-effective tool and whether the advantages outweigh the
disadvantages is something very specific to the company, which each
employer should analyze.”

Don’t Forget About Compliance

Continuous screening must still comply with the
federal Fair Credit Reporting Act (FCRA). Be sure to follow federal and state
laws regarding disclosure and authorization requirements and the adverse
action process, in case an employee is fired based on what the screening
uncovers. Employers should allow individuals an opportunity to dispute the
findings and should not base decisions on arrest records.

But it’s the provision that requires written consent by an
employee before a background check is conducted that can get a little tricky,
experts said. To allow you to run these background checks throughout the person’s
employment, you must be sure you say so clearly and conspicuously in the notice
and consent, or you can provide a fresh new notice and obtain a new
consent each time.

Although signing an authorization one time at the outset of
employment is generally accepted under federal law, it may not be in agreement
under state or local law. HR needs to be prepared for when an employee refuses
to authorize a rolling background check. “Is the employee going to be
terminated?” Waldron asked. “The employee may claim it is an invasion
of privacy. This is an uncharted territory of litigation, which comes with some
risk, particularly if the employee is a member of a protected class, which may
trigger a discrimination claim.”

At Converge HR Solutions, we specialize in handling all your
Human Resource needs, whether you choose to completely outsource your HR or
simply need advice, policies, or a handbook. We can ensure your background
check policy and procedures are in compliance or implement a background check
policy and procedure for you. Reach out to us to see how we can help you; our
team of experts is prepared to make sure your organization is in compliance
with all regulations. For more information about how Converge HR Solutions
can best serve you, please visit our website at https://convergehrsolutions.com/ or contact us directly
by email at info@convergehrsolutions.com or give us a call at
610-296-8550.

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