Continuous Employee Background Screenings
Employment screenings can reduce the risks of negligent hiring, negligent retention, internal threats, and workplace violence. Employment screenings are risk mitigation measures to protect the organization against liability for employee acts and to protect the safety of the workforce.
One-time employee background screenings conducted at time of hire may not be adequate to fully protect the employer from potential liability of internal threats or harm from employees post-hire. If pre-employment screenings are not supported by post-hire screenings, there is a gap in the employer’s security management practices. Continuous background screening of employees can help close that gap.
Due diligence is required to identify and assess short-term external risks posed by applicants and long-term internal risks posed by employees. The employer is charged with developing and implementing a comprehensive risk management strategy to protect the organization during the hiring process and throughout employee tenure.
Employee problem behaviors can lead to claims of negligent hiring or negligent retention. The legal doctrine of negligent hiring holds employers to a duty of care to assess the nature of employment, the degree of risk the employment poses to third parties, and to conduct reasonable investigations to ascertain the applicant is competent and able to perform job duties. Duty of care extends to reasonable measures to ensure the safety and security of the employee workforce. The employer can be held responsible for the conduct of the employee if the employer failed to use due care in the hiring and retention of the employee. The organization cannot cite lack of knowledge as a defense against claims of negligence in hiring and tenure. The courts will hold the organization to the legal doctrine of respondeat superior, that is, the organization should have known. The burden is on the employer to be alert to potential risks and to take appropriate steps to resolve matters in a timely, responsive manner.
Continuous employee background screenings, also called integrity screenings, monitor in real-time employee background data to flag events that could pose a risk to the organization and its workforce. Events can be specified by the employer and could include changes in credit and criminal history. A verification process is then initiated according to parameters set by the organization.
There are a number of factors to consider before incorporating a continuous background screening program into the organization’s risk management policy and practices.
Implementing policy and practices for continuous employee background screening may depend upon the nature of the business, the type of industry, industry requirements, the size of the organization, the makeup of the workforce, and assessment of risks.
An employer must exercise due diligence to understand federal, state, and local laws for compliance responsibilities, limitations and restrictions for continuous screenings. As a best practice an employer should seek legal counsel to fully develop and implement a compliant continuous screening policy and practice for his organization and the jurisdictions governing his work locations. This may be of particular importance regarding potential liability of the employer under the Fair Credit Reporting Act (FCRA) and applicable state laws regarding the use of consumer background checks for employment purposes.
Employers must have clear communication and procedures for employee informed consent and authorization to conduct employee background screenings. In general, employers are required to comply with the Fair Credit Reporting Act (FCRA) regarding the use of background checks for employment purposes. Employee written consent is required before a background check can be initiated. There are specific requirements regarding consent, authorization, disclosure, and notices that must be followed for legal compliance. Many states and some municipalities have requirements regarding the use of background checks for employment purposes including consent requirements for both pre-employment screenings and post-hire continuous screenings. While a one-time written consent and authorization for background checks may be permissible for many jurisdictions, in some jurisdictions an employer is required to notify and obtain consent for background checks each time a background check is conducted. The employer must determine the compliance level required by applicable jurisdiction.
In addition to the FCRA, the Equal Employment Opportunity Commission (EEOC) Guidance requires employers to take into account the nature and gravity of the offense, the nature of the job, and how long ago it occurred, before taking any employment action. Due diligence will be required if there are applicable state and local employment laws regarding employment actions.
Selecting a screening partner experienced in background screenings, continuous screening process technology, legal compliances, and industry requirements is an important task in the risk management continuous screening program implementation. An employer will want to conduct due diligence with a screening provider to determine how the process works including the primary source of the data, the accuracy of data extracted, legal obligations under the FCRA for consent and permissible purpose, other legal obligations under applicable federal, state, and local laws, data security protections, and provider requirements for implementation and data reporting to the employer.
The organization’s continuous screening policy should detail how the organization will conduct the process, manage informed consent from employees, communicate with affected employees and handle matters if data is flagged for risk and review.
Communication of policy and practices is important to ensure employees understand the duty of care responsibility to protect the safety of the workforce by implementing a risk mitigation practice. Employee handbooks should include language on what will happen if the employer discovers employee falsehoods or omissions regarding job qualifications/requirements post-hire.
Applications should clearly state employment policies including language that material falsehood or omission of employee information in any form could result in termination regardless of the discovery time frame. Employee consent forms should be clear that the employee is giving permission for employment screening and as permissible by law, consent to future screenings during employee tenure.
An important practice in the policy is what actions will be taken by the employer if potential risks are discovered, or if actionable events have been recorded. There should be written procedures to follow if derogatory information about an employee is discovered or a record of a criminal offense is found. Identification of a risk should not mean an automatic termination of an employee without further review and/or legal consultation. An action or a security review and investigation should be based upon business justification taking into account the connection between the negative information and the nature of the work being performed. The nature of the offense, the gravity of the offense, the employee’s job responsibilities, the time period in which the offense occurred, and all relevant information should be considered in an individual assessment of the situation. This practice should be included in the employee handbook.
In developing the continuous screening policy and practice an employer must give consideration to a situation where the employee refuses consent to the continuous screening program. Depending upon the parameters of the screening program and the application of the program to the entire workforce or to selected segments of the workforce for industry/ high risk requirement, the employee may need reassignment of duties or separation from the organization.
There can be positive outcomes from implementing a continuous employee background screening program. The program documents the employer’s due diligence for workforce safety. Written documentation may help defend against claims of negligence at hiring and retention, and other legal actions. Risk mitigation requires continued effort to identify and address potential threats. With continuous screening data is refreshed as conditions change. The employer’s ability to identify current risks can provide more timely and appropriate responses to issues.
Continuous screenings can discover information that was overlooked at the initial screening, erroneous information, or information awaiting process through the court system at the time of the initial report. With subsequent review the employer may find that the employee does pose an insider threat that should be investigated and appropriate action taken.
An added benefit is that post-hire screenings can identify expired licensures, certifications, permissions, or coverages. An expired license or certification can hold the employer responsible for liability issues if the employer allows the individual to work without the proper licensing and/or certifications.
There can be negative repercussions if post-hire screening is not thoroughly researched, developed, and implemented. Inadequate or incomplete attention to detail can bring about employee backlash and discontent. If employees receive the wrong or mixed message about a continuous screening policy, the employee morale and possibly employee productivity can be negatively affected. Long time employees may become distressed thinking they are under constant scrutiny and could be subject to dismissal at any time. Applicants may withdraw from consideration for employment if a screening policy appears arbitrary or without business justification.
Improper, inadequate, or faulty implementation of a screening policy can have serious legal consequences. A wrongful termination suit may be the least of the employer’s problems if his policy has not been legally vetted, properly implemented, and adequately supervised.
There are ways to mitigate effects on employee morale and corporate culture. If a continuous screening has been implemented new hires will have acknowledged the screening policy and given informed consent at orientation. If a continuous screening is newly implemented, there is potential that some employees will have difficulty accepting policy and practices. However employee education on the business need for the practice and the employer’s commitment to ensure a safe and secure workplace can help ease the stress and fear of new practices.
A continuous employee background screening program is an early alert system to flag potential risks to the organization from employee acts that can be internal threats or dangers to others. An employer should monitor such events, investigate accordingly and take proactive steps to mitigate such risks.