Monday, July 16, 2018

Are you ready for rolling background checks of employees?


Last week, Bloomberg published an article warning businesses to get ready for rolling background checks at work — the practice of running regular background checks of existing workers in addition to the routine pre-employment screening.

I bring this story your attention not only because it's quality information, but also because it happens to quote yours truly (thanks to Mike Sasso for the interview):

"I think the concern is coming from a fear that either something was missed the first time around or a fear of, 'Really do we know who’s working for us?'" said Jon Hyman, a Cleveland employment lawyer who has seen a pick-up in calls from manufacturers in the past six months inquiring about continuous checks.
"I think the MeToo movement plays into this, too, because they wonder, 'Do we have people who might have the potential to harass?'" he added.

Indeed, rolling background checks are a thing, and they very well might be the right thing for your business. They will tell you if someone working for you was convicted or a crime, or filed a bankruptcy, or perhaps suffered some other key life event that impacts their ability to perform their job for you, which either happened during their employment, or perhaps was missed during the initial pre-employment check.

The catch, however, is that this rolling check must still comply with the federal Fair Credit Reporting Act.

The FCRA is the federal statute that requires specific written consent by an employee before an employer conducts certain background checks, along with other specific notice and disclosure requirements (check with your counsel).

But it's the specific written consent that comes into play with these rolling background checks.

Before you run an FCRA-covered background check, you must:

  1. In writing and in stand-alone format (i.e., not part of an employment application or other document), tell the applicant or employee that you might use information in a background check for employment-related decisions; and
  2. Obtain the applicant's or employee's written permission.

Here's the catch with rolling background checks.

If you want the authorization to allow you to run these background checks throughout the person's employment, you must 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.

According to the FTC [pdf]:

An employer may use a one-time blanket disclosure, and obtain permission from applicants or current employees to procure consumer reports, at any time during the application process or during the employee's tenure. The disclosure must state "clearly and conspicuously" that the employer intends for the disclosure and authorization to cover both the application for employment and, if the consumer is hired, any additional consumer reports obtained while the individual is an employee. A valid disclosure and consent remain effective throughout the duration of employment.

Readers, I ask, have you considered, or used, rolling or continuous background checks for your employees? If you've used them, how have they worked out? If you've rejected, the idea, why? Share your thoughts and experiences in the comments below. 

* Photo by Andrew Neel on Unsplash
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