Nancy Gunzenhauser Popper, Associate in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in HR Dive, in “Court Closures During COVID-19 Cause Background Check Concerns,” by Sheryl Estrada.
Following is an excerpt:
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 Divein 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.” …
Options for employers
If an employer must complete a background 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.