When you hired Bob 15 years ago, you had a background check conducted by an outside firm and everything looked good. Since then, just seeing his smiling face every day has been enough to reassure you that all is well with Bob. But is it? Fifteen years is a long time and things in his life may have changed. With workplace violence, sexual predators on the loose, and good old-fashioned fraud, theft and embezzlement still in play, heightened scrutiny of applicants and existing employees may be the new prudent.
According to a recent survey of 6,000 HR professionals, only 11% of employers ever rescreen employees. That means that most employers remain blind to arrests, convictions and serious financial problems throughout an employee’s tenure. So unless Bob suddenly requests 3 to 5 years of vacation, you may never know what he’s been up to after hours and who’s really working for you. Given how easy it is for the public to access online records of arrests, convictions, and even mug shots, it can be advantageous for you to know before a client or customer embarrassingly gives you the heads up. Social media fueled by anyone, including competitors, can taint your business overnight with negative information about the character of your employees before you even know why. Periodic background checks can certainly help combat that danger but sure won’t eliminate it.
In an effort to address these concerns, some background check companies are offering the background check on steroids alternative in the form of continuous monitoring. This means that an employer will be alerted to an arrest, conviction or credit-related problem as soon as the information is available. This is now possible because more police departments and court systems have digital databases that the credit reporting agencies can access. Although it is unclear how many employers utilize this service, we do know that membership in the National Association of Professional Background Screeners has quadrupled since its inception in 2003. Can you believe there is such an organization? And we can only imagine what their annual convention is like?
There are some important legal concerns to rescreening and continuous monitoring. The federal Fair Credit Reporting Act (FCRA) requires employers to obtain written, informed consent before a background check is conducted by a third party credit reporting agency. The consent form must be a stand-alone document with nothing else on it but the FCRA release. Applicants must also receive the Your Rights Under the Fair Credit Reporting Act document. So far under FCRA, consent for repeat or continuous monitoring can be included in the form as long as it is clearly spelled out. But some state laws require a renewed consent prior to each check.
No matter when negative information surfaces through a background check, whether at the applicant stage or 10 years into employment, employers must still follow the FCRA requirements to provide a Pre-Adverse Action Notice, allowing a reasonable time for the subject of the report to contest the findings and if the employer or the reporting agency is unconvinced, an Adverse Action Notice before withdrawing an offer or terminating employment.
There is also the EEOC to consider. That agency takes a dim view of employers that fail to hire based on a criminal conviction that is either old or has no nexus to the position sought. So while you’d probably have no trouble rejecting CFO candidate who had an embezzlement conviction, if that same applicant was rejected for a position in the Maintenance Department, the EEOC would likely start barking. The same would be true if an employer failed to hire an employee because of a 20-year-old drug possession conviction. And although many believe that criminal background checks can only look back 7 years, the FCRA imposes no temporal limitation at all. We believe that most employers would want to know as much criminal history as possible, especially about violent crimes, even if they occurred decades ago.
Similarly, while we would recommend stopping short of getting your current employees’ Colonoscopy results, continuous monitoring of criminal and credit history sure seems like a prudent approach to knowing who’s really working for you.