Businesses continue to operate despite the global reach of COVID-19. And while some industries are seeing a momentary downturn in hiring, others are experiencing a seemingly insatiable need for talent. From workers supporting the supply chain to healthcare professionals on the frontlines of the battle against COVID-19, the need to identify and onboard workers is more critical now than ever.
And for many organizations that are experiencing a lull in hiring, the shift to remote work presents new risks that may have been previously unconsidered. Workers who are out of sight should not be out of mind.
Employers have a legal duty to ensure that a prospective worker does not present a danger to the organization or its clients. Negligent hiring occurs when employers fail to act reasonably when hiring an individual, and that individual subsequently harms someone else. Once a candidate is hired, employers are responsible for supervising their employees and ensuring that a worker’s retention does not present probable harm to the organization or its clients. Employers who fall below their duty of care and negligently hire or retain a worker could be liable for that worker’s bad acts.
Background screening is a vital part of an employer’s hiring and retention assessments as it provides employers with the ability to reasonably ascertain a worker’s future actions based, in part, on their past behaviors. Case in point, if a candidate has a criminal past, but has maintained a clean slate for several years and is employed in a similar position, those are good indicators that the worker should not present a foreseeable risk to the employer. Similarly, if the employee’s performance and periodic criminal screening or monitoring are satisfactory, then there isn’t likely a cause for alarm. But you cannot reasonably assess risk without a background check.
The current state of background screening
Background screening is typically divided into three major components: public records searches, such as a review of criminal and civil records, verifications, like confirming employment and education qualifications, and drug screening. Each segment is affected by the COVID-19 pandemic differently.
- Public records
As of this report, more than 60% of courts in the U.S. are reporting “open,” meaning there is no indication or notice of a change in the court’s standard process for fulfilling public records search requests. Approximately 30% of courts report having “limited results” available, with around 10% of courts having closed their operations.
The Fair Credit Reporting Act (FCRA) regulates, in part, the process by which employers request background checks on prospective and current employees, and the process by which background check vendors, as consumer reporting agencies, fulfill those requests. The FCRA places an obligation on background check vendors to ensure the information reported is both complete and up to date. If a court is closed, or if clerks are unavailable, then those verifications cannot be made, even if a court has an automated system. Some information obtained by automated or online means needs to be validated with a person at the court. If clerks are not working, then courts’ repositories may not be updated, which is why background check vendors will generally avoid reporting information from courts who do not have staff available to answer questions.
Many large employers utilize automated methods for conducting employment verifications. So long as these employers continue to contribute their employment records to these repositories, and those repositories remain operative, the majority of employment verifications are unaffected by COVID-19 closures. However, small and mid-sized employers that utilize traditional methods for employment are unavailable for verification. In these cases, candidates for employment can provide prospective employers with evidence of their previous work history such as a W-2 or pay stubs. Still, an employer should weigh the risk of accepting documents that are not authenticated. Also, several jurisdictions throughout the U.S. have passed laws that prohibit an employer’s inquiry into or verification of a candidate’s compensation history. Employers should advise candidates to redact their former compensation from any supplied documents, and generally should not consider any compensation history voluntarily provided to set the candidate’s future salary.
Educational institutions have been severely affected by the pandemic. Much like employment, many large or prominent institutions offering higher education degrees utilize automated methods for degree verification. Smaller institutions and those bodies offering lower degrees are mostly unavailable for degree verification. Because transcripts and diplomas are easily falsified and widely cannot be authenticated due to school closures, employers should not accept any documents submitted by candidates for education verification at their face value.
- Drug screening
Several drug screening options remain for employers despite COVID-19. Most large patient service centers like Quest and LabCorp are operating for collections, and are not testing for COVID-19, which reduces the risk of exposure to the contagion. Similarly, some clinics offering specimen collection services provide a text-ahead service. This service allows the candidate to make appointments online and provide a mobile number where they will be reached when the technician is available for testing enabling the candidate to self-isolate in their car instead of in the waiting room.
Employers who maintain a physical presence in an office, warehouse, retail space, or other location may consider oral fluid testing. Using oral fluid, a candidate can report to the workplace where a quick swab can test for the recent use of cocaine, amphetamine, opiates, phencyclidine, and cannabinoids (THC).
Screening options amid COVID-19
- Truncated screening
The scope of background screening differs by industry and position. Some industries including energy, finance, healthcare, and transportation must meet specific minimum background check requirements as identified within the regulations that govern them. Other employers who are service providers may be contractually obligated to undergo screening as defined within their agreements with their clients. And then there are those employers who are neither regulated nor subject to contractual screening requirements. Employers in this group are expected to conduct screenings that are reasonably aligned with others in their industry to not be negligent in their hiring or retention practices.
Amid the COVID-19 pandemic, employers may be considering revising their screening programs to accelerate time to hire, including temporarily waiving criminal checks. But doing so comes with risk, not only of negligent hiring or negligent retention but of justifying the validity of criminal checks in the future.
In order to defend against discriminatory hiring practices, Title VII of the Civil Rights Act of 1964 requires, in part, that employers demonstrate that their practices are “job related for the position in question and consistent with business necessity.” If, during the pandemic, an employer chooses to suspend criminal checks and reinstates them in the future, those practices could be challenged as not being job related nor consistent with business necessity since the employer was able to hire without the checks for some time.
While streamlining a background check program is worthwhile, truncating it may not provide employers with the results that benefit their organization in the long-term. Instead, employers should adapt their programs to align with the data available in the current COVID-19 environment and do so in a way that maintains their compliance obligations under the Fair Credit Reporting Act and any applicable laws or regulations. Novel solutions, such as social media screening, while never a replacement for criminal searches or other verifications, can provide employers with valuable insight into a candidate’s character. Untraditional sources can help to close the gap between unavailable traditional sources for screening, and offer new ways to build a holistic picture of a candidate’s fitness for hire.
- Post-employment screening
Employers typically condition employment upon the successful completion of a pre-hire background check. However, the definition of a complete check has shifted in the COVID-19 environment. Employers are beginning to recognize that while background screening is still entirely possible as many courts, employers, and educational institutions continue to operate, others are offline for an indefinite period. As such, many employers chose to hire candidates based on the information available to them now, and are reserving the right to conduct additional background checks post-hire, once courts, schools, and other sources become available.
While post-employment screening is an option for employers, they should recognize their compliance obligations. The FCRA and other state laws require that employers provide disclosure to and receive authorization from individuals undergoing background screening for employment purposes.
Employers must review the background check disclosures that they provided to their employees who have undergone background checks and assess if those disclosures provided for the option for future background checks over the term of employment. While the FTC has opined that ongoing authorization would be valid in most jurisdictions, in California, the validity of continuing authorization is unclear. Employers in California would generally not want to rely on an ongoing authorization even if the language was in the authorization form. Therefore, it’s usually viewed as a best practice to notify employees and obtain a new authorization whenever a background check is requested.
In addition, employers who run post-employment background checks who may decide to negatively affect a worker’s employment, based in whole or in part on the results of the background check, must follow the FCRA’s pre-adverse process. Employers are required to provide the employee with a copy of their background report, a summary of their rights under the FCRA and applicable state laws, and give the employee a reasonable opportunity to dispute the accuracy or completeness of the background report with the background check vendor. And then, after the employee has had a reasonable period in which to initiate a dispute, if an employer decides to terminate that individual or otherwise negatively affect their employment, the employer will need to send out an adverse action notice advising the candidate of their rights under the FCRA.
While COVID-19 has changed the way employers approach hiring, employers should not be dissuaded by time-to-hire from protecting the safety and security of their workforce through effective background checking. Like all businesses, the background screening industry has been impacted by COVID-19. But in this age of the new and novel, adapting to challenges is essential for survival. Employers should not abandon their hiring principles and sacrifice their culture amid this crisis. Instead, they should assess the current environment affecting their ability to hire and evolve to remain successful.