COVID-19

Global shelter-in-place orders have impacted most organizations and many processes that typically require people to leave the house, and therefore are impacting some background check processes and causing delays. 

• County criminal checks: Many county databases are digitized and so turnaround times are not affected; however, a number of county courts require a human interaction in order to access the records. This means we can still get access to the data for many of those courts through phone, mail, fax, or other online sources, but there are some delays. Some courts are fully closed and there is no way to get access until they reopen. You may reference our Help Center for current domestic court delays and closures. 
• Motor vehicle record (MVR) checks: With the exception of Pennsylvania, MVR checks are not experiencing delays at this time. Pennsylvania’s Department of Transportation is closed indefinitely. MVR orders need to go through their electronic system, which requires a PennDOT access code. Please visit our Help Center for detailed instructions.
• Drug screening: Most drug screening labs are still open, although some are closed due to social distancing concerns or local laws. Shelter-in-place orders may preclude candidates from going into a lab if the role is considered a nonessential position. You may reference our Help Center for current temporary drug lab closures, or use the drug lab closings widget in the GoodHire app.
  Update: Some labs may require candidates, upon entry, to pass a non-contact forehead temperature check and must wear a mask or face covering such as a bandana, scarf, or handmade mask. Candidates with a temperature greater than 100.3 or without a mask may be turned away for not meeting these new requirements. Please share this with all of your candidates, and check our Help Center for additional information.
• Education and employment verifications: Most education verifications are not experiencing delays; however, if an institution is closed and not part of the National Student Clearinghouse database, there may be a delay or inability to complete the check. For employment verifications, many checks can be completed online or through a digital source; however, some companies are closed and have not yet shifted resources to work-at-home employees, which may cause delays. 
• International checks: COVID-19 has now been confirmed in over 100 countries. You may reference our Help Center for a list of countries with delayed international checks. 

One option we’ve seen employers turn to is provisional hiring. That is, hiring now even though the background check hasn’t finished processing yet. This may not be possible for all employers and industries, particularly those with specific regulatory or contractual requirements that dictate how background checks must be conducted. (As always, be sure to check with your legal counsel.)

If you’re hiring for a regulated position, you can seek guidance from your regulatory agency regarding any exceptions for the extraordinary circumstances. For example, the Federal Motor Carrier Safety Administration (FMSCA) issued a temporary waiver that permits CDL drivers whose licenses expire on or after March 1, 2020, to continue to drive commercial vehicles. This waiver may not apply in all instances, so it’s important to review this with your legal counsel to ensure it applies to you.

If you have contractual requirements with your customer base that require screening before an employee can begin to work, you’ll need to review your contracts with your legal counsel. Determine if you have any flexibility with your screening requirements given the highly unprecedented circumstances.

If you’re not in a regulated industry and you don’t have contractual obligations requiring screening, you may have more flexibility in your hiring practices and you may be able to hire provisionally. 

You may also decide to prioritize certain checks over others. For example, some employers may choose to forgo employment or education verifications during this time.

Once we have verified your company, we’ll send an email to let you know. Once we have all of the candidate information and consent from your candidate, your background check will begin processing right away.

The background check request will hold until GoodHire can complete the check. GoodHire’s platform includes built-in alerts that will automatically notify you when results are ready. We are seeing some courts reopening already.

If you decide to hire provisionally, this may present challenges for your HR team. As a best practice, you should outline your provisional hiring policy and other changes to your screening practices in your employment screening policy to ensure consistent treatment of all employees. In particular, you need to have a plan for how you will handle cases where criminal convictions are revealed in a background check after the employee has already started working. 

Keep in mind, the federal adverse action process still applies, as outlined by the Fair Credit Reporting Act (FCRA). A pre-adverse action notice must be sent to the employee with a five business day waiting period before final adverse action can be taken (or longer, depending on your jurisdiction). This means that if you decide to terminate an employee based on the results of the background check, you’ll need to wait five business days after sending the initial pre-adverse action notice before actually terminating the employee. This could get awkward, so it’s important to have a plan.

If you’ve already decided not to hire, you won’t need to take any action on the delayed results because you would have already followed the adverse action process as outlined by the FCRA.

If you’ve already hired, but decide to terminate an employee based on the background check results, you’ll need to initiate the adverse action process. Whether you allow the employee to continue to work during the waiting period is a question for you, your HR leadership, and your legal counsel. Tread lightly. Any change in employment conditions that adversely affects the employee — such as being put on unpaid leave — may be considered to be an adverse action in itself, which could be interpreted as a violation of the five business day waiting period.

You may also decide to continue to employ the individual if you find they have a criminal history after you’ve hired them. Just make sure this is consistent with your screening policy so all candidates and employees are treated equally — both before the pandemic and now. If the offense would have been disqualifying prior to the pandemic, you’ll want to discuss the choice to keep the individual employed with your legal counsel. It could be difficult to defend your decision to disqualify a candidate hired prior to the pandemic if you didn’t do the same for an employee hired during the pandemic with the same or similar offense.

If your background screening process is changing in light of new challenges and changes facing your business, now is the perfect time to update your employment screening policy. Your policy should outline your screening practices across your organization, and should apply to all employees. However, the specific nature of the background check packages may be differentiated based on the nature of the roles you’re hiring for and the responsibility level associated with the role.

An employment screening policy should lay out:

• Which employment background checks will be conducted
• How frequently employees will be re-screened
• How particular offenses will be considered and evaluated in light of the responsibilities of a particular role
• Whether individualized assessments are conducted across all jurisdictions (even when not required by law)
• Whether you allow provisional hiring, and how you will treat provisionally-hired employees whose background check results show criminal history

If you need to change the way you screen, be sure to update your screening policy. Regardless of the circumstances, it’s a best practice to conduct regular reviews of your employment screening policy, and review it with your legal counsel.

You may wish to update your offer letter to reflect any changes in your screening practices due to the pandemic. For example, if you decide to hire provisionally, you’ll want to make sure that your offer letter clearly states that the offer is still contingent on the results of the background check, even if the background check is delayed or even if the employee has already started to work before it is finished processing.

Employers who need to hire quickly may turn to this option when it’s not feasible to get court data within a reasonable timeframe. Use caution, as this approach comes with its own risks. 

If you decide to ask candidates to self-disclose criminal history, it’s a best practice to do so only after a conditional offer of employment has been made. This is important to avoid violating any ban-the-box or fair chance hiring laws that may prohibit an inquiry into criminal history before this time. In certain jurisdictions, employers may not inquire about specific low-level crimes or offenses that occurred more than seven years ago. 

Consult with your legal counsel if you decide to take this approach. You will want to ensure you’re compliant, particularly if your candidate lives or works in a jurisdiction with ban-the-box or other state or local screening laws.

Furlough is essentially another word for unpaid leave, and therefore furloughed employees are not terminated from employment with your company. Generally speaking, it’s not typical for employers to rescreen employees coming back from leave in most circumstances, whether paid or unpaid. However, screening practices may vary based on your own screening policy and your regulatory or contractual obligations. If you decide to rescreen furloughed employees after they return to work, make sure to follow FCRA disclosure and authorization requirements as you would with any applicant or employee background check.

This is a business decision and may depend on your industry and the positions you’re filling, and factors such as how much time has passed since the layoff occurred may be taken into consideration. Some searches previously run, such as education and employment verifications, professional license verifications, or references would not need to be re-run a second time, as that information is not subject to change over time. However, if it is your company’s policy to conduct pre-employment background checks on new hires, then it is a good idea to implement these checks on all new hires, regardless of whether they were previously employed by your company.

While background check results do not “expire”, it is possible for the results to no longer be accurate, for example, if the person committed an offense between the time they were screened and when they start as an employee. It is a best practice to include in your company’s employment screening policy a set number of days that you will re-screen a candidate if he or she is not onboarded with the company during that time frame (between 30-90 days is a best practice).