Employers request background checks to verify that a potential hire is who they claim to be and such efforts often include a check of the individual's criminal record. However, courts across the country are restricting access to prevent the spread of COVID-19, which is resulting in delays in background checks of potential hires, according to Nancy Gunzenhauser Popper, an associate in the employment, labor and workforce management practice at Epstein Becker Green.
"Certainly we've seen impacts in states that have been hardest hit by COVID-19, like New York," Gunzenhauser Popper told HR Dive in an email. "Even if courts haven't been closed in certain jurisdictions, the background check company may be limited in having their personnel going to the courts, if there are certain shelter-in-place orders or essential business closures that impact the company's ability to conduct their business."
Some states offer online searches of court records for a background criminal check; however, it may not be equivalent to an in-person search, Anthony L. Picciano told HR Dive in a phone call. Picciano, the chief compliance officer and director of operations at Integras Intelligence, Inc., an investigative and research services company, said records found in online searches may be incomplete or outdated.
According to the National Center for State Courts (NCSC), online court records are not the same as background checks. "For specific information related to a particular case, you must visit or contact the court in which the action was filed," NCSC states on its website. The organization also cautioned that in some states the use of information obtained from an online court record "to deny a person employment, deny a rental agreement, or take any other adverse action against a person is prohibited by law."
Under these circumstances a company could "proceed with the caveat that the offer of employment is contingent upon an actual background check," Picciano said. However, "if you move forward with someone with a criminal background, that could be a problem," he added.
Integras Intelligence and other background and identity service providers are sharing with clients how they are addressing court closures. "Courts that utilize electronic record systems will experience little, if any, delay," Checkr, a background check provider, stated in a recent blog post. "Courts that require in-person records retrieval such as Massachusetts, however, can expect more significant delays." Checkr also said that a "significant increase in background check reports resulting in a pending status'' will occur if the company is unable to access court records in person or electronically.
Some, however, say the disruption is minimal. Sterling, a background check provider, said in a statement that despite closures in many areas during the COVID-19 crisis, it's still able to complete criminal checks with minimal disruption. "Sterling invests significantly in technology and automation that allows us to electronically access criminal record information," Sterling President Lou Paglia told HR Dive in an emailed statement. "This technology has always afforded us the ability to perform background screenings with speed and accuracy. Even during this COVID-19 crisis, amidst social distancing and court closures, we are completing more than 95% of our background screenings, enabling us to meet the urgent hiring needs of our clients at this time."
Options for employers
If an employer must complete a background check check prior to a hire beginning work (due to statute, regulation or contract), Gunzenhauser Popper said companies may choose to delay the start date, "assuming the offer was conditional on the completion of the check."
But if there's no obligation, one option is to ask potential hires to provide criminal conviction information, she said. Employers should make sure that this does not conflict with any ban-the-box laws, some of which prohibit employers from asking applicants to disclose criminal background information at various points of the application process.
Assuming employers can ask applicants to disclose such information, the application process could move forward. "The employer could make an assessment based on the disclosure form alone, or later use it to compare it with information in the background check when it is eventually performed," Gunzenhauser Popper said.
If it's essential for the potential hire to begin without a background check, and the results of the self-disclosure information is satisfactory, the company could have the person begin to work, she said. "If a background check later runs to compare against the self-disclosure, the employer must consider applicable federal, state, and local laws regarding withdrawing offers or terminating employment based on background checks," she added.
Complying with the Fair Credit Reporting Act
Employers also may need to note that, despite the circumstances surrounding the COVID-19 pandemic, the Fair Credit Reporting Act (FCRA) is still relevant, Gunzenhauser Popper said.
"An employer using a third-party consumer reporting agency must always comply with the FCRA when conducting background checks, whether criminal, credit, education, or other types of checks," she said. "This means providing a disclosure to the prospective employee that a background check will be run and obtaining authorization for the employer to conduct the check."
The FCRA does not impose limitations on timing of background checks, Gunzenhauser Popper said. However, many states and cities do limit when a background check can be run — "whether it is after an application is received, after the first interview, or after a conditional offer of employment has been extended," she said.
A company also has the option to run a background check after an employee begins, but the same disclosure and authorization requirements will apply, Gunzenhauser Popper said.