COVID-19 has impacted the way all companies conduct business. The background screening industry is not immune to those changes.
Oftentimes an employer will find themselves in a position where a candidate’s background checks contain elements that require verification from the source in order to complete the search. Examples of these may be degree or school verifications, or previous employment verification.
Perhaps the most important verification confirmation is with a criminal search. Typically, this involves someone at a court house to physically pull a file to confirm the status of the individual concerned.
But in the age of stay-at-home orders and social distancing, how is an employer meant to get a name verified by a court that is currently closed, with no indication of when they will reopen?
Common names often need to be verified by a court clerk to rule out any chances of mistaken identity. More so, if the applicant has a crime in their county file, can they be passed to the employer? Will it impact their ability to be hired?
So the employer is “stuck.” How does the employer move forward with the hiring process when they don’t know what may be in a file at a court house?
Background Check Vendors are Legally Obligated To Provide Accurate Information
An open position can mean lost revenue, incomplete work, overworked staff, etc. If an employer puts them to work anyway, how can they protect themselves from a negligent hire claim or a suit?
The FCRA places an obligation on background check vendors, or CRAs, to ensure the information reported is complete, up-to-date, and accurate. They can’t take the applicant’s word for it, it must be verified by the source. If a court is closed, or if a court clerk is unavailable, then a verification cannot be made. Some courts have automated systems, but usually a paper file must be pulled for final verification of information. This simply can’t be accomplished with all of the courts closed.
The only thing that is safe to say is that America has never been faced with this kind of shut-down in our history. There are no rules on this, no precedence, they are literally being made up as we go every day.
As such, the Professional Background Screening Association, along with several of the industry’s top legal minds have scrambled to provide guidance to both CRAs and employers on how to conduct, complete, and protect (to the extent possible) all involved when running a consumer report that may have certain elements that can’t be verified.
For now, the safest option for employers is to receive a consumer report that completes unverified data as Unable to fulfill and to close the report.
The benefits of this approach are many:
- The Employer can still hire the employee, provisionally. This is perfectly acceptable and legal (some exceptions are made by state requirements in certain industries like healthcare). The employer needs to be upfront with the incoming employee that X (you fill this in) percent of the background screen was unable to be fulfilled and that it is the employer’s intent to complete those items when the courts have reopened. The employer should also indicate that if something is found that is concerning to the employer they may have occasion to end their employment.
- It is critical that employers who run the unable-to-be-fulfilled items at a later date, where required by law, get a new authorization and disclosure signed by the employee before that background check is run (California being an obvious example). This is considered a new consumer report and must be treated as such.
- If derogatory information is found when the items are run and completed that would cause the employer to end the employment, the Adverse Action process must be followed.
- The step of marking the item as Unable to fulfill and closing the report insures that the employer and the CRA meet the obligation that the information is complete and up-to-date. For example, supposing an applicant has lived in three counties. During the criminal search process, only two can be verified because the court house in the third county is closed. If left in a pending status until the court opens up, say 60-90 days later, the third search is now current, but the former two may no longer be considered accurate. Why? The applicant could have done something in that time frame to change one or both – making the report inaccurate. Ordering the remaining searches, once the sources are reopened for business, actually constitutes a new consumer report and that info can then be verified. An employer taking such action risks contravening FCRA regulations.
Working With Your CRA To Deliver A Workaround Solution
Navigating the unprecedented business environment forced by COVID -19 is daunting. There are many issues as employers we’ve have never had to face. With millions of Americans unemployed, the background screening process should not be a hindrance to hiring.
Employers need an effective, safe, and legal solution for hiring staff, protecting their workplace and clients. Close pending elements that are impacted by source closures and run them when the sources are open. It is best for the candidate and the employer. If your background check company (CRA) hasn’t contacted you regarding modified workflow solutions for your business, perhaps it’s time to evaluate that relationship.
Impact Employee Solutions communicates with legal experts consistently to modify our workflows, safeguard our clients against liability, and provide the best solutions for pre- and post-hire screening.