How to Legally Apply Continuous Arrest Monitoring
While most employers understand the value of criminal background checks for job applicants, the recent changes to many workforces have demonstrated that these screenings may be insufficient. There is quite a bit more unsupervised freedom with many employees now working from home or with a hybrid schedule. Supervisors and managers may feel disconnected from the day-to-day behaviors and well-being of their employees. In some instances, this lack of direct oversight means that employers could miss red flags that indicate an employee may no longer be thriving in completing their tasks.
And while periodic rescreening may work for some companies to provide updates to changes in an employee’s life that impact their ability to do their job, continuous arrest monitoring is another option. This strategy allows the employer to get an alert if they get arrested or become incarcerated. More advanced monitoring strategies could also alert the employer of a number of other actions that may involve the employee, such as:
- The filing of a lien against the individual
- Placement on no-fly lists
- Liability for any civil judgments
- The loss of a medical license, bar certification, or other professional license/certification required to complete their job
- Placement on databases maintained by the Office of Inspector General or General Services Administration
- Driving violations
And while some professions cannot justify looking at all of these aspects of their employees’ lives, other industries cannot afford a lapse in hiring, particularly if it may put other workers, customers, or clients in danger. Common industries that may require continuous monitoring include healthcare, nursing homes, childcare, hospitality, security, financial, and retail.
Continuous arrest monitoring enables employers to become notified if an employee becomes arrested or incarcerated. This strategy catches instances in which the employee passed the initial background check, but then later behavior revealed an issue that may impact their ability to do the job. Employers who are considering implementing a continuous arrest monitoring policy will want to ensure that it is done legally. The following considerations can highlight strategies that uphold legality.
- Changing Employment Policies: In instances where continuous arrest monitoring is a new policy for an employer, they will want to amend hiring and employment policies. These policies should make it clear to all impacted employees and job candidates what data is being collected and how it will be used. Employers should outline what types of criminal activities are being monitored and what disciplinary actions may result from a finding related to continuous arrest monitoring. If possible, it is good to consult legal counsel while drafting these policies to shed light on any state, local, or federal regulations that may apply.
- Setting a Scope: Many employers will only be interested in a subset of criminal arrests or convictions. The financial industry, for instance, may only want to know information related to theft. However, suppose you are looking at specific types of criminal activity. In that case, you must inform all parties and have a policy in place to ensure all individuals are treated equally and fairly.
- Compliance with FCRA and State Authorization Laws: The Fair Credit Reporting Act mandates that employers must have written consent before conducting a background check. While some authorization forms allow for periodic rechecks or continuous monitoring, this practice is outlawed in certain states. For example, the state of California requires the employer to seek authorization before each background check. Many jurisdictions also require employers to only conduct additional background checks after a predetermined amount of time has elapsed. For these reasons, it’s a good idea to have a complete understanding of the FCRA requirements and any state laws that govern consent related to continuous arrest monitoring.
It’s also a good idea to look at any recent legislation that may impact what information can be gained and used during background screenings and continuous arrest monitoring, such as Ban the Box laws and the Fair Chance Act.
- Follow-Up on Information: Continuous arrest monitoring is a great way to alert employers of a potential problem with an employee, but it is not sufficient for any disciplinary actions in many instances. Employers must do their due diligence and investigate the information to verify it is accurate. They can also communicate with the employee and, in instances where appropriate, allow the employee to dispute the charges.
Continuous arrest monitoring is a way for employers to maintain the integrity of the workplace despite many of the recent changes in how workplaces are structured. However, this process comes with some legal pitfalls. If you have additional questions or would like more information about continuous arrest monitoring, contact USAFact today, a trusted expert in criminal background checks.