Making The Case For Continuous Background Checks

November 26, 2018

The July announcement from Uber of running continuous background checks for its workforce of drivers is triggering other companies to consider the same. Based on the onslaught of negative press that Uber and other on-demand car riding services have received in terms of misconduct, it makes perfect sense that they would pursue this uncharted territory, but does it make sense for all companies in other business sectors too?

What’s Driving the Push?
A company like Uber needs to be on top of changes to its staff’s driving records or license suspensions due to criminal or traffic violations. So they teamed up with Checkr, a screening firm based in San Francisco, California, and since July, the company has removed over 24 drivers based on citations and/or violations.

In contrast, the industry norm set for background checks was established a long time ago when the rationale was that a background check be conducted when potential employees were brought on board to a company. This is the point at which consent was historically presented to the employee and granted. Companies generally checked a slew of areas of the employee’s history—from criminal records to employment history to verification of data provided, such as education/college attendance and graduation, or possession of a license to perform a required function of a job. Other industries would put other areas under the microscope, such as driving records, credit and financial histories, fingerprints (for government and municipal jobs), and even candidates’ social media pages.

You may be surprised to hear that in a benchmark survey of nearly 6,000 HR professionals conducted by HireRight in 2018, only 11% of the surveyed organizations are currently re-screening employees even once a year while they are under employment. This means that most companies would be ignorant of significant or troubling changes to an employee’s background history, whether it involved a crime or an arrest, the revocation of a license, the loss of authorization to work altogether, and more.

Due to the fear of not being in the know of critical changes to an employment’s record or history, more and more companies are contemplating continuous employee background checks. And, they are even an option due to more and more government agencies, such as police departments, courts, and public school systems, digitizing records and making the employee’s information readily available online. In fact, Melissa Sorenson, executive director of the National Association of Professional Background Screeners, comments, “While there are some industries whose regulations have mandated continuous or some form of periodic screening, such as health care, we are seeing more industries embrace the idea, particularly in 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.”

But Is It Feasible and Fair?
While the benefits of conducting continuous background checks is obvious, the risk and cost savings is not. . .yet. Since it is new terrain, there is not a lot of data that analyzes the cost benefits or advantages for employers. Also, if you do pursue a service that offers fluid background checks, you really need to check its validity – it is common knowledge that there are a lot of databases out there that may be suspect and not all that reliable.

Though collecting your own data on your employees from trustworthy sources that you research provides more credibility, performing that task is extremely time-consuming. As Mary O’Loughlin, HireRight’s managing director and vice president for health care and life sciences, points out, there is not one single database for all criminal records due to not all jurisdictions having invested in making them available online as of yet.

It is also important to note that HR needs to be cognizant of staying within the parameters of the federal Fair Credit Reporting Act (FCRA) and other state laws. Firing an employee based on the information that a background check yields can violate specific disclosure and authorization requirements regarding the adverse action process. Basically, employees should be given written notice if a significant change to his/her history or record is reported, and should be given ample time and/or means to dispute any charge or findings brought to his/her attention.

Lastly, a very gray area in this realm is the receipt of consent from your employees to conduct continuous background checks. Because this step used to be performed when an employee was initially brought on board, it was customary for consent to be captured by HR departments at that moment in time. With companies now considering performing employee background checks intermittently and/or continuously, companies must make sure that they have communicated this to their employees and provided an opportunity for their employees to give their express consent. Jon Hyman, a partner in the labor and employment group of Meyers Roman Friedberg & Lewis, warns: “If you want the authorization 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. Otherwise, you have to provide a fresh new notice and obtain a new consent each time.” As an alternative, Hyman suggests offering a one-time blanket disclosure to obtain permission from an employee to conduct continuous checks at any point within the employee’s tenure. But, employers must check the laws and review any type of employee disclosure or consent agreement with legal departments or in-house counsel.


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