Written By ESR News Blog Editor Thomas Ahearn
Transportation network company (TNC) Uber is performing continuous background checks on some of its drivers in the United States in an effort to improve safety for its riders after a CNN investigation found more than 100 Uber drivers were accused of sexual assault in the past four years, according to a report from Axios.
Axios reports that Uber Vice President of Safety and Insurance Gus Fuldner said the company deployed continuous background checks in early July to a “meaningful percentage” of its U.S. drivers and has removed 25 drivers so far as a result. Uber can be notified if a driver has been newly charged with a criminal offense.
“Ultimately what we’re looking for… is a way to get the same kind of info as in a background check, but get it in a real-time manner,” Fuldner told Axios, adding that Uber can decide if it needs to suspend a driver to prevent unsafe behavior. Drivers can become eligible to reapply if their charges get resolved.
In April 2018, a CNN investigation found at least 103 drivers working for Uber in the U.S. “have been accused of sexually assaulting or abusing their passengers in the past four years” and as many as “31 drivers have been convicted for crimes ranging from forcible touching and false imprisonment to rape.”
The CNN investigation into background checks for Uber revealed that there were several occasions when the company “welcomed a driver who should have been barred under the company’s policy that excludes people with convictions of serious crimes or major driving offenses from shuttling passengers.”
That same month, Uber announced the company would increase its due diligence. In a blog entitled ‘Getting serious about safety,’ Uber Chief Executive Officer (CEO) Dara Khosrowshahi wrote that Uber would strengthen its screening process moving forward with annual background checks and new offense notifications.
The growing scrutiny over background checks of TNC drivers for companies such as Uber is one of the “ESR Top Ten Background Check Trends” for 2018 selected by leading global background check firm Employment Screening Resources® (ESR), which is headquartered in the San Francisco, California area.
“Continuous screening involves periodic background checks on current employees to identify criminal cases that can occur after a worker is hired,” explained ESR founder and CEO Attorney Lester Rosen. “However, employers need to consider a number of factors to determine if it’s worthwhile, fair, and legally compliant.”
In an article by the Society for Human Resource Management (SHRM), Rosen said that without continuous screening “an employer may discover post-employment that critical information was missed during the hiring process” that may lead to post-hire insider threats that include embezzlement, fraud, theft, and violent behavior.
“For example, an employer may discover post-hire that a person is a registered sex offender or that a credential is faked. Employers shouldn’t assume that passing a background check means there will never be issues with insider threats down the line,” Rosen stated in the article ‘Is Continuous Screening the Future Normal?’
“The key is initial screening, ongoing screening, and an environment of control and physical safety,” Rosen told SHRM. “To prevent surprises caused by missed information during pre-employment screening, employers should have policies, practices, and procedures to carefully select employees in the first place.”
Rosen said applications should state that falsehoods or omissions by the applicant can result in termination, employers should ensure background check releases have an “evergreen” clause to allow future screening, and employee handbooks should include a policy that employees must self-report arrests that impact their jobs.
In his book “The Safe Hiring Manual,” Rosen also explained that employers need to consider certain factors with continuous screening that include a false sense of security, consent issues, and compliance with the Fair Credit Reporting Act (FCRA), the Equal Employment Opportunity Commission (EEOC) Guidance, and state laws.
Under the FCRA, all background checks including continuous screening must be done with consent unless there is a specific investigation for suspicion of misconduct or wrongdoing. Although many consent forms contain “evergreen” language, an employee can either withdraw the consent or claim it has become stale over time.
If an employee withdraws consent, the question arises if the employee can be terminated. It is clear employers have more discretion in requiring pre-employment screening since they do not have experience with applicants but not as clear if employees can be terminated for refusing to consent to continuous screening.
In addition, Rosen said employers need a policy on how they will deal with any criminal records uncovered during continuous screening. If a criminal record is found, employers must take into account the nature and gravity of the offense, the nature of the job, and how long ago it occurred, according to EEOC Guidance.
Rosen warned employers that continuous screening on current employees carries some risk as they must also follow pre-adverse action notice requirements of the FCRA and the “Individualized Assessment” process outlined in EEOC Guidance. One company even ended up paying more than $1 million to rescreen their workers.
In September 2015, BMW Manufacturing was ordered to pay $1.6 million to settle a discrimination lawsuit filed by the EEOC that claimed African-American workers were excluded from employment at a disproportionate rate when a new contractor applied BMW’s criminal conviction guidelines when re-screening employees.
ESR offers some complimentary whitepapers written by Rosen to help employers better understand continuous screening that include “What to Do if Your Employee Gets Arrested – Eleven Steps to Consider” and “Background Checks and Reducing the Insider Threat: Strategies Before and After Hiring.”
ESR Provides Post Hire Background Checks
Employment Screening Resources® (ESR) – a leading global background check firm – offers employers a suite of post-hire screening solutions that include ongoing monthly monitoring and annual background checks. To learn more about continuous screening, visit www.esrcheck.com/ESR-Solutions/Post-Hire-Background-Checks/.
NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.
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