You've likely heard this statement many times over the last several weeks, but these are, indeed, unprecedented times.
Our hearts go out to everyone affected by COVID-19, including those who are suffering from illness, grieving the loss of a loved one, or facing major financial strains.
As a business, we're also hearing from customers. Some are experiencing slow-downs due to the global pandemic, while others are experiencing much busier times due to the nature of their business (for example, organizations that are part of the critical supply chain). We're working closely with all our customers to help them wherever they are.
To that end, we wanted to answer some FAQs we've been receiving about running background checks during a global pandemic.
Regarding many of these answers, we've consulted Melissa Snyder, Good Egg's attorney and compliance manager. Melissa is FCRA-Advanced Certified from the Professional Background Screening Association (PBSA).
The big disclaimer, of course, is that any information she provides here is simply educational in nature, not legal advice. You should consult your own attorney regarding your specific situation.
My company needs to ramp up its workforce right now. What are the risks associated with letting job candidates start, even if their background checks are still pending because of delays associated with COVID-19, like closed courthouses?
There are several risks associated with allowing a candidate to start while the background check is still pending.
Firstly, if the employer is in an industry where certain background checks are required by law or regulation or individuals with certain criminal histories are prohibited from being employed in certain positions, those requirements are still in existence and will continue to be enforced, even in the wake of this pandemic, unless the regulating agency has issued a full or limited waiver.
One example: the Federal Motor Carrier Safety Administration (FMSCA) issued a temporary waiver that,
among other things, permits CDL drivers whose licenses expire on or after March 1, 2020, to continue to drive commercial motor vehicles. However, the waiver is only in effect until June 30, 2020, and it has some restrictions.
For example, the CDL waiver does not apply to a CDL holder if the driver's privileges have been suspended or withdrawn for traffic offenses. Importantly, employers should not assume that all regulated industries are instituting waivers. This will only be done in limited circumstances, when the regulator determines that is in the public interest to issue a waiver.
For non-regulated employers, we still think allowing candidates to start while their background checks are pending is a little risky, because it could potentially open them up to negligent hiring claims down the road. Granted this is a small risk, but it's at least worth noting.
In addition, allowing someone to work while the background check it still "open" can lead to uncomfortable situations if the employee ultimately fails the background check.
For example, there is a waiting period between the pre-adverse action letter and the final adverse action letter, and the employer legally has to delay a final adverse decision (termination/denial of employment) until this waiting period has expired.
The waiting period is typically a week, but if the employee files a dispute with the background check company during the waiting period, the dispute will delay the process further, potentially for several more weeks (and possibly even longer during this pandemic due to things such as courthouse closures).
During this time, the employee who is potentially a risk to the company and its workforce is required to remain employed. This would NOT be a good situation for the employer—or the employee—to be in.
For this reason, we at Good Egg are taking the approach of making every reasonable effort to complete pre-employment background checks as ordered, but when that is not feasible due to court closures, we are allowing our clients to instruct us to close out the affected criminal components as "cancelled", so that the order does not remain in pending status indefinitely. Employers who opt to do this will obtain a final report based on all of the information that is reasonably available, which can be used to make the hiring decision (keep reading for important considerations).
Also keep in mind that Employers are able to provide other custom instructions if our standard process during this crisis doesn't meet your needs.
My company really can't afford to lose out on good candidates right now. Is there something else I can do?
If you don't want to lose out on good candidates, but you don't have an immediate need for new hires to start working right now (maybe you are a non-essential employer whose offices are closed and you aren't keen on the idea of having new hires start their employment remotely), you could put a somewhat distant "tentative" start date in the offer letter, pending successful completion of the background check. This will buy you some time to delay initiation of the background check until you are ready to take on the new staff.
Even if that date comes and goes due to prolonged court closures forced by the COVID-19 outbreak, we doubt the candidate will jump ship just because their background check is taking longer to finalize, since every other applicant and employer in that jurisdiction will be facing the same issue.
And a candidate who does jump ship is probably not someone who would have been a good, long-term hire anyways.
My business is important from a supply chain perspective. What now?
For many employers, it is imperative that certain individuals start working immediately. For example, maybe they will be manufacturing or transferring food, essential goods, or medical supplies, or serving other essential functions, or maybe you are ready and willing to take on and train new hires for non-essential positions remotely. In this case, the employer should decide if the benefits outweigh the perceived risks.
If you decide to continue growing your workforce, Good Egg is here to help. And we can offer up some recommendations: At a minimum, the employer should make a good faith effort to complete the pre-employment screening before.
the applicant starts working. If that proves impossible due to court closures, the employer should consider creating a temporary background check policy in response to the coronavirus that permits employees to start working, even if components of the background check returned as “pending” or "cancelled."
Such policy should be reviewed by internal or external employment counsel before being implemented. And of course, once this pandemic is over and we all get back to business as usual, employers should seriously consider rescreening the employees who were initially screened under "special" limited circumstances (to avoid any negligent retention claims).
We'll be adding new questions and answers here, as they come in.
And, of course, if you have questions, please don't hesitate to reach out.