As the Covid-19 pandemic shows no signs of slowing down and the remote work trend continues to accelerate, elements of background screening potential contingent and internal employees have become more problematic. Components that require in-person contact — such as visits to county courthouses, fingerprinting and lab-conducted drug tests — are tricky amid the pandemic. At the same time, contingent workforce program managers must rely on proper background check procedures to prevent risky hires, litigation exposure and more.
A periodic review of your background-check policies and procedures with your legal counsel is always a good idea, according to Eric Rumbaugh, a partner with law firm Michael Best & Friedrich LLP. “I think background checks are a big source of liability because they are sometimes done incorrectly and in a way that creates liability,” he told SIA.
Here’s a look at the challenges around background screening, as well as ways to keep your company safe while engaging the right talent quickly.
State and federal regulations dictate when and how you can conduct background checks — the biggest one being the Fair Credit Reporting Act, which governs almost all background checks done through a third party and counts such reports as consumer reports. And there are many state versions of the FCRA that overlap with the federal versions when it comes to background checks.
“It’s an easy thing to get wrong and in many cases the forms that people use either aren’t compliant or started off as compliant and became non-compliant because people added things to the forms,” Rumbaugh warns.
Any deviation from the proper format can lead to trouble down the road. For example, under the FCRA, an applicant must be provided with notice that a consumer report will be obtained, but the notice must contain nothing but the notice. “You can give someone 30 pages of information, but the notice has to be on a page by itself,” Rumbaugh explains. An organization may initially have a compliant notice, but it can be invalidated if something like a waiver of defamation claim is added to it. “That’s the example that most often happens — forms aren’t compliant, or they were compliant, and someone didn’t know and added something to it,” he says.
The FCRA also requires that certain steps be followed if something disqualifying, like a criminal record, is found in a background check. The applicant or employee must be provided with a pre-adverse action notice that includes a copy of the report and the FCRA summary of rights. After a waiting period for the subject to respond, a second adverse action notice can be sent advising of the final decision. This could mean withdrawing an applicant’s job offer or terminating the employment of an existing worker.
“Covid-19 has quickly forced us to rethink new ways of doing business, recruiting, hiring and onboarding,” says Vincenza Caruso-Valente, general manager of staffing, retail and franchise business at a background screening and HR solutions company Sterling Talent Solutions. Organizations may have found themselves at a disadvantage going into the pandemic if they did not have a strong recruitment and hiring process driven by a solid technology foundation to source the best talent and facilitate accelerated time to hire, along with the availability of a strong candidate pool of full time and contingent workers to assist in filling critical roles.
“The increased need and demand for workers in the midst of a pandemic also has created the dynamic of recruiting and interviewing remotely,” Caruso-Valente says. “This has led many organizations to pose the question — are candidates who they say they are? Amid pandemic-driven remote working, interviewing and hiring, organizations are faced with a potential heightened risk of identity fraud, and many are increasing their use of identity verification in order to manage this risk.”
Verification via traditional avenues — such as courts and universities — can be difficult and/or delayed due to Covid shutdowns, resulting in incomplete reports.
When to Onboard
Especially for light industrial or lower-skill roles, it has been challenging for companies to get talent in the door or keep existing workers engaged amid the pandemic. Given the stimulus packages as a competitor to actual employment, compromising on traditional requirements may be a way to get contingent workers in the door, according to Chris Paden. “Organizations may try to open the pipeline by shifting what their typical background requirements might be.”
But should an organization allow a candidate to start working with a background check still pending? This is a company-specific decision — and it may be more important in cases where it is the only qualifying tool, such as with gig economy platforms, or less important in other situations where the worker has no access to company resources or confidential information.
Another option is to “gate” the potential employee, allowing them to start the onboarding process with limited access. This keeps them engaged with the organization but on the flip side, could complicate the offboarding process if a decision is made not to keep the candidate when the complete background check comes in.
For most roles, Paden advises that allowing talent to start work prior to a completed check should be “a rare situation, if it happens at all.” That said, contingencies could be made for validating ancillary details of an individual’s history — for example, confirming their education background.
However, if a decision is made to onboard the candidate while the background check is still pending, Jennifer Mora, senior counsel in the labor and employment group at law firm Seyfarth Shaw LLP, in a podcast  advises asking the applicant to do two things:
- Self-disclose if they have ever been convicted of a crime. This question has been removed from many job applications due to the proliferation of “ban-the-box” laws, but all jurisdictions allow asking the applicant to self-disclose their criminal history after a conditional offer has been made. However, some jurisdictions do prohibit asking about certain things, so be sure to spell those out on any questionnaire presented to the applicant so they don’t disclose anything that you can’t consider (for example, in San Francisco, applicants are not required to disclosed convictions older than seven years).
- Modify your offer letter to advise the person that the background screening has not been complete and why (i.e., court closures due to Covid-19). While the decision may be made to allow an applicant to begin working pending the completion of the check, the offer letter should make it clear that their continued employment remains contingent upon completion of the check.
In my next CWS 3.0 article, I will take a look at as adjudication guidelines, as well as arrest and conviction records in background checks. Want to contribute your insights? Reach out to me at email@example.com.