Despite massive layoffs across a variety of industries, essential workers, such as those in retail, are being hired, and as hiring continues so to should thorough pre-employment background screening. As the Covid pandemic continues to paralyze economies all over the world; in the USA it remains very important that employers still employ a thorough vetting process to help weed out malfeasant individuals during the hiring process. Now is a critical time to remain diligent in all hiring practices and policies, and, despite the economic downturn due to Covid-19, hiring managers and HR Departments must continue to thoroughly background check all new employees; a subsequent best practice remains working with a well-qualified third-party pre-employment background screening agency.

Across the country companies continue to hire new employees during the Covid pandemic and pre-employment background screening should be a part of the hiring process. Now, more than ever, hiring managers and HR departments must remain diligent in hiring practices and pre-employment background screening agencies should be utilized to provide legally compliant, accurate, and up-to-date information.

During the current economic upheaval related to the Covid pandemic, it is important to note that the laws governing pre-employment background screening have not been put on moratorium or relaxed. All laws that govern the use of public records (such as criminal background records) as related to background screening, remain fully intact. The laws, policies and regulations governing pre-employment background screening have not changed during the pandemic.

From Lexology.com (Aug. 20, 20):

Don’t ignore federal and state background check laws while waiting for the dust to settle on this pandemic! Here is what employers need to know about these requirements.

Generally speaking, before an employer may obtain a background check (also called a “consumer report”) from a third-party background check provider (also called a “consumer reporting agency”), the employer must make a clear and conspicuous written disclosure to the individual that a background check may be done. In fact, the document must consist “solely” of the disclosure… The candidate or employee must also provide written consent for the employer to obtain a background check report. Different requirements exist for “investigative consumer reports” (those based on interviews of the individual’s friends, neighbors and associates), and for employers regulated by the Department of Transportation (depending on their hiring practices). ^{lexology.com/library/detail.aspx?g=159821ee-3fa1-4344-89c1-ebd125262953}

And the critical and important reasons for background screening applicants has not changed either.

From Forbes.com (Apr. 16, 20):

Employers have a legal duty to ensure that a prospective worker does not present a danger to the organization or its clients. Negligent hiring occurs when employers fail to act reasonably when hiring an individual, and that individual subsequently harms someone else. Once a candidate is hired, employers are responsible for supervising their employees and ensuring that a worker’s retention does not present probable harm to the organization or its clients. Employers who fall below their duty of care and negligently hire or retain a worker could be liable for that worker’s bad acts. ^{forbes.com/sites/alonzomartinez/2020/04/16/covid-19-what-should-employers-consider-as-they-adapt-their-background-screening-program/#32d657ccae0f}

In short the message about background screening is that nothing has changed as far as laws, policies, and procedures during Covid-19, and that is the importance of the message coming out now.

It is also important to note that employers still need written consent from a potential hire before conducting background checks on the individual. This letter is called an “employee release form” and if investigative consumer reports are to be had as well there also needs to be a clear explanation of these kinds of reports being conducted as well. In addition an employer also has to be cognizant of other laws regarding hiring practices like ban-the-box laws that may apply to them and may limit when in the hiring process certain background checks like criminal background checks can be conducted. All in all it is still a best practice for employers to utilize a professional background screening company to provide background check reports in a compliant and legal manner.

To learn more about why performing in-depth employment screening on prospective hires is still very important even in a world under the Covid-19 pandemic read recent CriminalBackgroundRecords.com press release: During Covid-19 Background Screening Should Continue Without Change; States CriminalBackgroundRecords.com

With COVID-19 consuming the news and most media outlets it’s time to visit where we are with the Ban-the-Box movement midway through the year. When it comes to vetting potential employees for positions within companies and organizations it is important to know if Ban-the-Box laws affects how you can use criminal report information in the hiring process.

In the world of pre-employment background screening new Ban-the-Box laws dominated headlines, but with the outbreak of Covid 19, Ban-the-Box has taken a bit of a backseat. But laws continue to change anyway.

In 1998 Hawaii became the first state to ban-the-box, a law that essentially “bans” the question of criminal history on an employment application. Since that first law multiple states and municipalities have followed suit. With every passing year ban-the-box laws are enacted with the goal of assisting those with criminal background records in attaining gainful employment.

Ban-the-box laws are often complex and may cover every detail.

In recent months several jurisdictions have moved to close loopholes in respective ban-the-box laws or modify the law in general in order to cover a broader cross section of individuals seeking employment.

In Minnesota, one of the first states to follow Hawaii with ban-the-box legislation, is working on updating their law and close a loophole that still required the criminal history on some state boards and commissions.

From MinnPost.com on June 16, 2020:

In recent years, even as Minnesota was considered a pioneer in ending the practice of asking job seekers about their criminal histories, it somehow was still posing the question to applicants for one class of job: appointments to state boards and commissions. ^{minnpost.com/state-government/2020/06/special-session-gives-lawmakers-second-shot-at-eliminating-minnesotas-ban-the-box-loophole/}

Pennsylvania legislation is working with the governor of that state to correct licensing policies to be more inclusive of individuals with criminal records.

From NorthCentralPA.com from July 2, 2020:

Building on criminal justice reforms and fulfilling a recommendation to modernize job licensing, Governor Tom Wolf signed Senate Bill 637, which removes outdated licensing barriers so skilled workers with criminal records can get a second chance and start good careers.

The governor has advocated for sweeping changes to the licensing process for years. ^{northcentralpa.com/news/local/bipartisan-bill-removes-barriers-for-people-with-criminal-convictions-to-find-employment/article_9fc60b70-bbd0-11ea-bbf1-a79b8c1b9d00.html}

A bigger move is currently being worked on at the federal level by Congressman David Trone (D-Md) and Congresswoman Maxine Waters (D-Calif), one that would Ban-the-Box across the country.

From MarylandMatters.org from June 12, 2020:

U.S. Rep. David J. Trone (D-Md.) has introduced a bill that would remove the requirement to inform employers of a job applicant’s previous criminal history.

The Workforce Justice Act, introduced by Trone and House Financial Services Committee Chairwoman Maxine Waters (D-Calif.), requires states to implement “ban the box” policies that prohibit private employers from asking about the criminal history of applicants before an offer of employment.

The aim is to remove the stigma of individuals with criminal records and provide them a fair chance to compete in the job market. Seventy-five percent of formerly incarcerated individuals remain unemployed after one year of release. ^{marylandmatters.org/blog/trone-introduces-ban-the-box-legislation-with-maxine-waters/}

As Minnesota aims to achieve an all-encompassing Ban-the-Box law other States and Jurisdictions are working on their own versions of the law. Also in Congress Representatives David Trone and Maxine Waters are working on a Ban-the-Box bill that would be a Federal law effecting the whole country. Amongst all this commotion with such laws in this country and all the possible changes that could happen; it is still a best bet for employers to partner with a professional employment screening agency to help ensure their employee vetting process is compliant with all relevant law effecting the hiring process and when if ever in that process they can use a person’s criminal background record as part of their decision making process.

To learn more about why the ban-the-box movement continues even amongst a world dealing with the COVID19 pandemic and why removing the question of criminal history from employment applications can greatly assist those with a criminal past achieve gainful employment and why this is good for society as a whole read recent TenantScreeningUSA.com press release: Mid-Year Check In on Ban-the-Box

Phase one of the return to normalcy has begun and each state and county seemingly have differing guidance and regulations regarding the return to work. At this time employers and employees need to be cautious in their efforts of opening up their businesses and conducting proper behavior while at work which could include wearing a mask and other preventive methods. Additionally on several levels, employers need to take special care when employees return to the workplace.

Many returning to work are excited to get out of the house but still have to stay within the guidelines of social distancing and wearing the appropriate PPE (Personal Protective Equipment).

Pre-employment background screening has many challenges without a pandemic or stay-at-home work orders. While it may appear that there are no jobs available in the workplace many employers are beginning to ramp back up. For the near future companies will have to work under stringent guidelines in order to keep employees safe. The same holds true during the hiring process.

Typical job interviews are managed face-to-face. But with COVID related safety protocols in place the hiring process has changed. Job interviews are now handled via Zoom and/or exclusively by phone. For many companies across the country the on-boarding process is managed the same way.

Pre-employment background screening has faced its own challenges. During the initial phases of the shutdown many county courts were closed and criminal court records were not updated on a regular basis. Many state and county employees worked from their homes during this time and did not always have the ability to update court records. And, more importantly, many courts were closed entirely, or worked on a limited basis.

As county courts begin to reopen there will be a deluge of delayed court proceedings. Records will be updated but certainly there will be delays in the process. In order to maintain best practices hiring managers and HR departments should work with a well-qualified third-party pre-employment background screening agency in order to remain up to date with court closures, as well as maintaining access to those critical court documents required to fully vet a candidate.

A greater challenge for an employer may be with the return to the physical workplace.

From JDSupra.com (May 20, 20):

Despite the best of intentions to comply with the myriad of laws, orders and recommendations and to “do right” by employees while dealing with the current pandemic and recession, employers remain vulnerable to a whole host of potential COVID-19-related claims. Ever-changing guidance and return-to-work orders complicate the issues. Keeping abreast of the actual and potential legal theories being raised is key to assessing potential COVID-19-related litigation risk. ^{jdsupra.com/legalnews/top-five-covid-19-litigation-risks-for-34262/}

As the country begins to open up new sectors of the economy that were hit the hardest by the pandemic they must do so with great care and caution as a resurgence in COVID19 cases could put us right back to where we were. Administering proper hiring practices through the use of an employment screening company is still a best practice.

Additionally, to further add to the complexity of the situation employers may be faced with whistleblowers, as related to COVID19 and the return to work policies.

From Law360.com (May 26, 20):

Scores of COVID-19-related whistleblower retaliation complaints have recently been lodged with the Occupational Safety and Health Administration and similar complaints are being filed in federal and state courts. This is the tip of the iceberg. Such claims are based on several legal theories grounded in alleged retribution against employees for voicing health and safety concerns and requesting leave or accommodations. ^{law360.com/articles/1274746}

The challenges employers are facing now and will continue to face for the next several months are significant. One way to alleviate some of the stress of returning to the workplace is to work with a third-party pre-employment background screening agency.

To read more about the challenges the country is facing due to the re-opening of parts of our economy and why using a professional employment screening company can help employers navigate through some of these issues read recent CriminalBackgroundRecords.com press release: COVID-19 and Return to Work

Without question COVID 19 has brought forth devastating new realities. Beyond social distancing and flattening the curve, millions have been put out of work via layoff and furlough. Some companies have closed permanently and still others are teetering on the brink. However, individuals working in so-called essential positions are still working, either on the front line or at home.

Despite so many layoffs positions are still available and need to be filled. Many of these positions are with at-risk populations and, subsequently, should still require a vigorous pre-employment background check conducted by a well-qualified third-party background screening agency. Even still employment screening may become challenging.

From SHRM post on April 7, 2020:

Employment background screening has been disrupted as employers adapt to the COVID-19 pandemic. In some cases, screenings have been put on hold because courthouses and schools are closed, blocking access to records. In addition, uncertainty about deteriorating business conditions has caused some employers to pull back on hiring. ^{shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/employment-screening-challenges-due-covid19-coronavirus.aspx}

Despite challenges, at-risk populations need to be protected. Caregivers, technicians, helpers, and related roles need to be thoroughly vetted in order to protect at-risk individuals. But, admittedly, screening can be a challenge in a lockdown environment.

Many of the workers that managed county court records have been furloughed or work remotely. And with Courts shut down in many parts of the country record maintenance becomes difficult. Current electronic records may not be the most accurate and court researchers may not have access to hand pulled records.

Again, from SHRM post on April 7, 2020:

Completing screens today has hit a few roadblocks, as well. “The fact that there are court closures and people are working remotely has become a huge challenge for everyone involved in screening employees,” said Pamela Devata, a partner in the Chicago office of Seyfarth Shaw.

Court closures, while intended to protect public safety, present a practical problem. “Some of the few industries actively hiring during this time are industries working directly with vulnerable persons—industries like health care, transportation, and food or grocery delivery—where background checks are a critical safety step in the hiring process,” said Melissa Sorenson, executive director for the Professional Background Screening Association (PBSA). ^ibid

One example of the challenges with pre-employment background screening during COVID 19 occurred with a woman in Oakland, CA.

From San Jose’s Mercury News on April 8, 2020:

Whitney Merchant had been looking for a new job since she left AC Transit late last year. Despite the bleak economic conditions caused by COVID-19, she finally landed a position with a major health care company on their coronavirus communications team.

But Merchant hasn’t been able to start work because her new employer can’t complete a standard background check in two Bay Area counties where courthouses have shut down. ^{mercurynews.com/2020/04/08/coronavirus-amid-bleak-employment-picture-oakland-woman-got-a-job-but-cant-start-due-to-courthouse-closures/}

A best practice during good times and times of challenge, such as COVID19, is to work with a third-party pre-employment background screening agency especially as laws governing hiring practices and jobs in general can change quickly in challenging environments.

To read more about the challenges facing the economy and hiring practices due to COVID-19 and why courts that have shut down can create huge problems in background screening efforts read recent CriminalBackgroundRecords.com press release: Hiring Challenges During Times of COVID 19