Resource Center

Continuous Screening

Question: Should we conduct post-hire, continuous screenings of employees for new arrests?

Response and Analysis:

The concept of conducting post-hire screenings has gained popularity in recent years as an additional tool for an employer to better manage risk. While an applicant’s record may be clear upon hire, ongoing screening purports to reveal criminal activity by the employee that happened after the pre-employment screening was conducted. However, extreme care must be taken when considering such programs as they pose a slew of thorny legal questions that have yet to be tested by the courts, and could actually create more risk than they seek to limit.

Post-hire screening is often a standard practice for employees upon promotion, transfer or upon a change in job responsibilities. Initial screenings may be basic and limited, but as responsibilities are enhanced, a more comprehensive search may be necessary. In addition, certain regulated industries (child care, elder care and law enforcement, for example) require that ongoing screening be performed, but typically by state or federal licensing authorities and not the employer.

But continuous screening by private employers raises a host of privacy and legal ramifications that must be considered. While the Fair Credit Reporting Act (“FCRA”) allows for the initial disclosure and authorization form to provide continuing consent, additional consent requirements vary by state law. In California, it is arguable that a new consent form is required each time a search is done. In addition, continuous monitoring post-employment may raise privacy issues and state laws should be checked.

The ultimate question to consider is: what will you do with adverse information once you learn of it?

It can be very problematic to use arrest information, given the EEOC’s Enforcement Guidance on the use of criminal records, considering that the impact of an arrest is significantly greater on minorities. According to the EEOC, African Americans and Hispanics are arrested in numbers disproportionate to their representation in the general population. In addition, African American men had an imprisonment rate that was nearly seven times higher than White men and almost three times higher than Hispanic men. An arrest does not mean that a crime has been committed. However once you learn of an arrest, you are in the awkward position of having to determine if, in fact, a crime has been committed, and if so, the relationship of the information to the job. In order to avoid claims of discrimination and not run afoul of the EEOC Enforcement Guidance, any information used should be job-related and consistent with business necessity or the use of such information can instead create liability. This is particularly important with respect to arrest information, as an individual is presumed innocent until proven otherwise.

In addition to the legal and privacy issues raised, the reliability of the information is a concern. A lack of identifiers in databases can create dangerous false positives—databases are not often updated and the data can be a patchwork of information providing inconsistent coverage.

In the event that you do receive actionable, quality information, you still need to carefully consider what you will do with the information. Having a consistent policy in place before you undertake periodic screening is critical. At a minimum, if you intend to act upon the information, you should act in accordance with the FCRA and provide pre-adverse action notice (even if you are not using a consumer reporting agency to report the information) and you should conduct an individualized assessment of the information to ensure that it is job-related and consistent with business necessity.

If you do determine that rescreening is necessary to protect your organization, you should implement a well-thought-out, compliant policy that addresses the issues of disclosure and consent, is relevant to the employment position and outlines how the information will be used.

A tested, safe alternative is to conduct annual screenings in conjunction with obtaining annual signed disclosure and consents from employees. In addition, as a condition of employment, you can impose an affirmative obligation on employees to timely report any arrest or conviction occurring during employment.

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This document and/or presentation is provided as a service to our customers. Its contents are designed solely for informational purposes, and should not be inferred or understood as legal advice or binding case law, nor shared with any third parties. Persons in need of legal assistance should seek the advice of competent legal counsel. Although care has been taken in preparation of these materials, we cannot guarantee the accuracy, currency or completeness of the information contained within it. Anyone using this information does so at his or her own risk.

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