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Continuous Screening May Create Issues for Employers

If candidate demonstrates a track record of performance before joining the organization, and demonstrates continued performance, continued screening is unnecessary.

February 25, 2010
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Related Topics: Miscellaneous Legal Issues, Change Management, Recruitment, Staffing Management
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The collapse of hiring in 2009 gutted revenues in the background screening industry. At LexisNexis’ ChoicePoint, the nation’s largest screener, revenue plummeted 16 percent in the first half of 2009 because of the drop in

hiring. At First Advantage, the second-largest screener, employer-services revenue dropped 27 percent for the first nine months of 2009 compared with the same period for 2008.

With forecasts pointing to extremely low levels of hiring in 2010 and suppressed hiring for years to come, many screeners are looking to boost revenues by promoting screening for existing employees and all contingent and vendor employees.

“Infinity screening,” or continuous post-hire screening, commonly entails criminal checks and drug tests for existing employees every one to three years. HireRight’s 2009 survey found that 16 percent of employers now screen their existing employees on an ongoing basis, up from 12 percent in 2008.

At EmployeeScreenIQ, president and COO Jason Morris has seen a significant jump in the number of clients using infinity screening, with most screening existing employees on an annual basis. “It’s one of those added protections,” he says. “As an employer myself, I screen all employees every six months for a criminal record.”

Mary Massad, director of recruiting for Administaff, a professional employer organization, does not advocate infinity screening for client companies. “We only recommend screening where it is part of a selection process,” she says. “The approach we take is that if you can demonstrate a candidate’s track record of performance before the candidate joins the organization, and then your performance management program demonstrates continued performance, continued screening is unnecessary unless there is some indication—for example, evidence of embezzlement. The question is: What are you looking for that you’re not seeing day in and day out?”

Infinity screening is widely available from vendors, but many employers are not prepared to deal with the results, according to Rod Fliegel, partner at Littler Mendelson.

“The real question for employers is: How are you going to use the information?” he notes.

Wide variations in state criminal laws generate additional issues for employers that want a consistent policy on adjudicating screening results. “Not all felonies are created equal,” says Scott Paler, an employment attorney at Seyfarth Shaw.

A conviction for possessing 25 grams of marijuana in Florida may mark an employee as a felon; the same 25 grams nets a misdemeanor in Illinois, a “civil citation” in New York or a “minor misdemeanor” that does not create a criminal record in Ohio. In Alaska, an employee can hold and smoke a whole ounce at home with no fear of penalty or a criminal record.

Paler warns employers to check state laws about authorization forms for criminal checks. “Some employers use forms that allow checks throughout the term of employment, but in California, the statute is unclear, and employers may need a form for each and every time an employee is checked,” he says. “Ongoing drug testing falls under a different set of state laws, with wide variations in requirements from employers.”

Workforce Management, February, 2010, p. 30 -- Subscribe Now!

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