Continuous employee screening, sometimes known as continuous employee monitoring or “infinity screening,” is the practice of conducting criminal background checks and drug tests for existing employees on a regular or intermittent schedule. In many states, and now federally, “ban the box” laws may limit how far back in time a background screen can go, or the criminal check may only be done when you’re prepared to make an offer. Some companies, especially high-volume, high turnover, or those who employ gig workers, rely on continuous screening so that incidents occurring after the hire date can be considered in order to protect the public, their customers and their employees.
While continuous screening can be considered as a risk-management tool, employers must consider a number of factors before implementing it as part of a screening program:
Consent. Once you’ve made the decision to adopt a continuous screening policy, your job application forms should make it clear that any material falsehood or omission from the applicant can result in termination, no matter when it is discovered. Your company’s employee handbooks should also include language on what will happen if your company’s background screen (at any point) discovers falsehoods or omissions post-hire.
For new workers coming onboard when a policy is already in place, continuous screening is less of an issue. However, when you implement it as a new policy, your current employees may have more difficulty accepting it. Your HR team will need to conduct some employee education on the rationale of continuous screening, show how the policy benefits everyone and require all employees sign a consent form that indicates they are aware of the policy.
Accuracy. If these checks are based on the use of criminal databases, employers should understand the limitations of these databases. When some databases are used to screen for criminal records, then there is the possibility of both “false positives” and “false negatives.” A “false positive” means although there is a match, it is not the consumer in question, or there has been an expungement or some other judicial set aside that has not been updated.
Reputable background screening vendors will use these types of searches, but only as a secondary research tool for the purposes of possibly locating reportable criminal records in additional jurisdictions. If a match is discovered during a periodic check, the background screening firm will conduct a courthouse level search in order to confirm the identity and the details of the case to determine if it is even reportable under applicable laws before including such information in a report to an employer. As an employer, you’ll want to ensure that your background screen provider is a member of The Professional Background Screening Association (PBSA), that they have experience with continuous screening, and can ensure accuracy in the information they provide.
FCRA compliance. The Fair Credit Reporting Act (FCRA) allows for the initial disclosure and authorization form to cover continuing consent, but in California, for example, it’s arguable that a new consent form is required each time a search is done.
Adverse action. It’s important to note that The Fair Credit Reporting Act (FCRA), which governs how and when companies conduct background checks, requires employee consent, and if a company plans to discipline or fire a worker based on the findings, it must give the employee an opportunity to review the data for errors or explain any mitigating circumstances. Cisive understands this process from start to finish and can ensure that your company remains compliant throughout a continuous employee screening process.
Permissible purpose. Legally speaking, continuous background checks can only be run on people who are still employed with your company. Running periodic checks on former employees may violate their rights. A system is needed to determine if the organization still has a permissible purpose under the FCRA to perform the check by determining if the person is still an employee. That means the employer needs a way of tracking who is still working and communicating relevant names to the screening firm.
While continuous background screening is more common in certain industries, such as trucking, federal jobs, and gig jobs that create liability for companies like Uber and Lyft, employers are watching this trend closely. The cost of screening gig workers, for example, is far less than a lawsuit from a customer whose safety was compromised because a company was unaware of a gig worker’s violent criminal history.
Cisive offers a unique, one of a kind service for continuous criminal monitoring. With direct connections to over 2,000 penitentiary facilities, we can capture over 85% of all arrest bookings and incarcerations in the U.S. The monitoring service scans employee records for criminal activity and provides an alert within 60 minutes or less of any criminal arrest or conviction.
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