The demand for this started when ride-share companies became increasingly concerned about ensuring the safety of passengers from drivers. There has also been concern about significant fraud in the health care and banking industries.
In an effort to stem the tide of any wrongdoing and reassure regulators and clients, this type of background check has become more popular.Continuous background screening is when employee records are monitored in real-time to flag concerns post-hire for the entire workforce.
Continuous screening is more widely available today than it was even a couple of years ago, due in large part to advances in technology. It is prevalent in jurisdictions where police departments and court systems have moved to online records systems.
Follow the Fair Credit Reporting Act
A continuous background check will need to go through a consumer reporting agency, which is a third-party screening company. According to the Fair Credit Reporting Act (FCRA), passed in 1970, when working with such a screening company, your organization must obtain written permission from the applicant or employee first.
In addition, the FCRA requires companies to provide a written disclosure and authorization. This must be separate from any other documents provided to employees on hire to the organization. If you turn down an employee due to their background check, you must follow the procedure described in this Fair Credit Reporting Act - Overview whitepaper.
Watch for Updates to the FCRA and Regulations
The Consumer Financial Protection Bureau (CFPB) is concerned about continuous monitoring, as explained in a letter it sent to the Office of Science and Technology Policy, where it states, “the use of new technologies raises novel and significant concerns about intrusive information-gathering and surveillance of workers, concerns about companies that provide information used by employers are longstanding.” It is hoping for updates to the regulations that more fully explain who is covered and when they are covered.
Updating the regulations may become more urgent as some continuous background screening companies argue that they are not subject to the FCRA. Some are arguing, and at least one company has argued successfully, that because they do not prepare a consumer report, and instead are only providing tidbits of information, they are not covered. This could be legally tricky for employers that need to carefully consider FCRA implications. It also requires the employer to be the one to check out the information provided by the background screening company before moving forward.
Your hiring and employment policies will need to be amended if you adopt continuous monitoring, and it would be helpful to have legal advice before moving forward. recommended policy include the following:
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Continue to follow the FCRA. This means obtaining an FCRA disclosure and authorization form before doing any background checks.
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Indicate on the disclosure that background checks may be conducted during the tenure of an employee. (The link to the form directly above includes a sample that includes this.)