Post-Hire Risk Monitoring
The utilization of post-hire risk monitoring policies, procedures, and practices may be the long-term due diligence complement to an organization’s pre-employment screening policies, procedures, and practices.
Post-hire risk monitoring is the process of conducting periodic background checks on employees after they are hired. The post-hire screening process is also known as infinity screening or continuous screening. Post-hire monitoring of life events of employees on a periodic or on-going basis helps to protect the organization, its business, and the workplace from insider threats from criminal activities.
Employee criminal acts can create significant risks for employers. Risks may include:
- Theft
- Embezzlement
- Inventory shrinkage
- Identify theft
- Industrial espionage
- Data breaches
- Sexual harassment
- Workplace violence
- Organization brand and reputation damage
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 burden is on the employer to be alert to potential risk issues and to take appropriate steps to resolve matters in a timely, responsive manner. The organization cannot cite lack of knowledge as a defense against claims of negligence. The courts will hold the organization to the legal doctrine of respondeat superior – the organization should have known.
Employers utilize pre-employment screenings to help reduce their risks when hiring. The question for some employers is how to reduce their risks after an employee is hired. Shifting some of the focus from threat of external risks to threats posed by internal risks provides for a more comprehensive risk management strategy. While pre-employment screenings contribute to a more informed hiring decision, post-hire monitoring provides for a more informed employee tenure. By proactively identifying employee risky behaviors during time of employment, employers are able to reduce their exposure to liability.
The dynamics of the employee/employer relationship, market demands, and corresponding business changes in job roles and responsibilities can have an effect upon the employee at work and his life outside of work. As things change, so might the employee.
The fact that an applicant passed the pre-employment screening does not guarantee that the employee will not be a risk in the future. A good hire should become a good employee. However, an employer cannot foresee employee future behaviors or forecast probability of risk. To keep his company safe, an employer must continue active due diligence on known and reasonably foreseen threats. Post-hire monitoring of current employees is a threat assessment tool.
Good organizations will monitor the fit between the employee, the job, and the organization. Post-hire screenings can be an objective risk assessment tool to aid in the long-term employment decision. Changes in employee life situations may alert the employer of potential risks which should be addressed.
Before developing and implementing a post-hire monitoring or continuous screening policy, employers must conduct a different type of due diligence. There are many considerations – legal, industry, and corporate business – that must be researched for an informed decision.
Seeking legal counsel to provide guidance on a number of issues may be advisable. Researching applicable federal, state, and local laws regarding the use of background screenings for employment purposes will determine if such screening/monitoring is permissible by law and the type of permissible screenings. There may be industry rules and regulations for certain job positions that will be a governing factor in policy formulation. Legal advice may be needed to protect employee rights as well as employer rights. The screening policy must be legally compliant, non-discriminatory, clear in language, and detailed in terms and conditions of employment including responses to be taken upon discovery, investigation, and resolution of actionable events.
All forms of applicant/employee communications 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 timeframe. Employee consent forms should be clear that the employee is giving permission for screening during employment, and as permissible by law consent to future screenings.
It is the employer’s decision to determine the type, frequency, and conditions of the screening policy based upon the legal requirements, industry requirements, and business need. As examples, an employer’s policy could be to require background checks annually, upon employee consideration for expanded job responsibilities, at specified intervals throughout employment, or utilizing continuous monitoring of public records for potential issues.
An important component 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.
There can be positive results from implementing post-hire risk monitoring policy and practices. A post-hire risk monitoring policy and practice:
- Creates documentation of the employer’s due diligence efforts throughout employee tenure. Written documentation may help defend against claims of negligence or other legal actions. A pre-employment screening is only an initial due diligence, a one-time snapshot of the applicant’s qualifications for employment as of the report date. The screening by its nature cannot predict the applicant’s future behaviors. Applicant data may be changing even as a report is being prepared. An employer cannot rely on the accuracy and usefulness of the screened data for the long-term. Post-hire risk monitoring is the next step forward in due diligence.
- Employers can’t assess or prepare for risks of which they are unaware. The initial screening is the good faith effort of the employer to protect his business. However, as noted above, a pre-employment screening is only as good as the data that has been reported and the screening company has access to. If derogatory information has yet to be filed, or has been misfiled, the employer‘s hiring decision is compromised.
- 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 now current employee does pose an insider threat that should be investigated.
- Post-hire screenings can identify expired licensure, certifications, permissions, or coverages. This could be particularly important in certain types of industries such as healthcare, finance, transportation, and law. 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.
- Post-hire screening helps to protect the organization’s clients, customers, and vendors. Through risk reduction efforts within the company, the interests of third party interests are protected in their interactions with company employees.
There can be negative repercussions if post-hire monitoring 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 their productivity can be negatively affected. Long time employees may become stressed 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 need.
- 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.
Post-hire risk monitoring may or may not be appropriate for all businesses. It will depend upon the nature of the business, the type of industry, the size of the organization, the makeup of the workforce, and assessment of risks. The question employers must ask: “Is it worth it?” That answer determines the next step in fulfilling their duty of care to ensure the safety and security of their workforce and by extension the clients and customers that are served. Background screening conducted at the pre-employment level is an information gathering tool to protect the organization. By conducting post-hire background screening, the organization gains a real time risk mitigation tool.