TOP 7 FREQUENTLY ASKED QUESTIONS CONCERNING COVID-19 & EMPLOYMENT BACKGROUND SCREENING
By Mario Pecoraro, CEO, Alliance Risk Group, Inc.
The COVID-19 crisis has severely impacted every industry and sector of the economy including an employer’s ability to properly vet new hires. Courts around the United States and globally have been impaired and, in some cases, completely closed.
This has negatively affected the employer’s ability to conduct comprehensive background screenings. What is an employer to do in this situation and what are the challenges that may lie ahead? To answer these questions, I have assembled the top 7 Frequently Asked Questions (FAQs) surrounding the COVID-19 crisis and its impact on background screening.
QUESTION 1: What aspects of a background investigation may be delayed or not completed because of COVID?
ANSWER: The primary aspects impacted include any courts (civil or criminal) that may be closed or have restricted access along with any verification source (education, employment, references) that may not be accessible due to limited staffing or restrictions. For an updated link to the latest news around closures and availability, visit COVID 19 IMPACT ON PUBLIC RECORDS.
QUESTION 2: What aspects of the background investigation are least impacted by COVID-19
ANSWER: Any searches that are automated and require no human or physical interaction are least impacted by COVID-19. These searches include Address History/SSN Verification, Department of Motor Vehicles Records (in some cases) and other various governmental data sources including exclusion lists and limited sex offender registries.
QUESTION 3: If I hired an applicant but all aspects of their background investigation could not be completed due to COVID-19 closures, should I go back and “recheck” once the courts and other sources have opened?
ANSWER: We recommend reviewing your current Employee Handbook and Hiring Practices including Legal Counsel. You have several options when it comes to post-hire or contingency screening, depending on the consent secured and the type of offer extended. If you offered employment contingent upon the completion of a successful background investigation, then yes, you may recheck. If the successful background check contingency was not in place and you decide to complete the remaining searches, you must be sure to follow the Fair Credit Reporting Act (FCRA) guidelines and associated best practices in hiring including securing proper authorization and disclosures.
QUESTION 4: If I opted to run a “database” driven search such as a multi-state criminal records inquiry because of my inability to access live court records and a potential “record” is found, how should I handle this?
ANSWER: In accordance with FCRA, any adverse information that is developed must be properly verified before being reported. Ensure that your provider is utilizing an acceptable process to verify third party information. Failing to follow the guidelines of the FCRA, including the Pre-Adverse and Adverse Action Process, can place you at risk. Simply “checking the box” to run a quick database search can be problematic and potentially raise future litigation issues.
QUESTION 5: If an applicant decides to refute the contents of a report, what are the challenges employers and Consumer Reporting Agencies (CRAs) or background screening companies face?
ANSWER: Applicants have specific rights under the FCRA including the ability to refute the contents of a report for its accuracy. As part of these rights in an Adverse Action Process (Pre-Adverse Action Notice, Adverse Action Notice) an applicant may request a “reinvestigation” of information which they may wish to refute. Failure to grant the applicant the ability to reinvestigate any contents of a report within 30 days could present the CRA and employer with legal challenges. The emergency response to COVID-19 has temporarily created the inability to conduct comprehensive searches. For this reason, the Professional Background Screeners Association has petitioned the Consumer Financial Protection Bureau, the agency that enforces FCRA compliance, for an exception to this rule that includes an emergency suspension of reinvestigation of public record items. To read more about this notice, visit PBSA.
QUESTION 6: If my state reqiured a “fingerprint” background check and I was not able to complete this due to COVID-19 restrictions, how should I proceed?
ANSWER: Various states have conditions associated with following required fingerprinting solutions. One example includes New York which has several agencies that require a Criminal History Records Check (CHRC) as mandated by the Department of Health and, in some cases, an FBI check. CHRC and FBI checks in some areas may not be available and many employers have been faced with the dilemma of not moving forward with an employment decision pending completion of the fingerprint check. You may conduct other searches as alternatives to determine if your candidate is eligible, however, you may not use those results as an automatic replacement for the fingerprint check. You must secure authorization and/or an exception from the licensing or governing agency to utilize an alternative to the mandated system. Properly completing the fingerprint background investigation is the best way to mitigate your exposure or liability.
QUESTION 7: If there is a gap in an applicant’s employment due to COVID-19, how can I verify this?
ANSWER: A gap in employment due to COVID-19 may be found by reviewing the start and end dates of employment for each stated employer during the period of the pandemic. Verification may be completed by contacting the employer directly or a provider outsourced by the employer such as a third-party data aggregator. You may also learn of potential gaps in employment utilizing a social media search that reveals the same or similar results. In addition, some states require certain employers to publicly file notice of furloughs and layoffs. Reported employers can then be cross-referenced to confirm they were part of that layoff.
CONCLUSION:
The COVID-19 crisis has upended many normal procedures in personal and business life. Hiring procedures and background investigations are no exception. However, with all that is at stake when adding new employees and verifying they are indeed the right fit, this is no time to cut corners. Hopefully, this answers many of your questions but feel free to reach out to me if you need assistance! Please take care of yourselves as the country reopens and we embark on the “new normal.”
About Mario S. Pecoraro
Mario Pecoraro is President/CEO of Alliance Risk Group Inc., a company that provides customizable background investigations; surveillance and complete SIU investigations; service of process on a local, state, national and international level; and property/casualty adjusting services. An industry thought leader, Mario speaks at conferences around the country and has published two books available on Amazon.com called “Avoiding Costly Hiring Mistakes” and “The Claim Game: Twenty Best Practices When Managing and Investigation Workers’ Comp Claims.” In 2020, he consolidated his companies, (Alliance Risk Group, Avvocato Litigation Support International and Preferred Adjustment Company,) under one name – Alliance Risk Group, Inc., and one mission, Reducing Risk and Inspiring Confidence. For more information call (518) 514-2944 or email [email protected].”