{"id":671,"date":"2021-09-22T13:41:00","date_gmt":"2021-09-22T13:41:00","guid":{"rendered":"https:\/\/thescreeningsource.com\/?p=671"},"modified":"2024-02-29T16:56:09","modified_gmt":"2024-02-29T16:56:09","slug":"the-business-of-background-checks-during-a-pandemic","status":"publish","type":"post","link":"https:\/\/thescreeningsource.com\/?p=671","title":{"rendered":"The Business of Background Checks During a Pandemic"},"content":{"rendered":"
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While Covid-19 has inspired shutdowns of many businesses, \u201cessential businesses\u201d in the retail and healthcare industries and elsewhere need to hire employees as fast as ever. These companies face a problem: the shutdowns have limited public access to the most common sources of information for background checks. This article will explore what California employers in the face of a pandemic are to do when needing to urgently secure onboard employees pending completion of a background check.<\/p>\n\n\n\n

California is notoriously rife with regulation as to how employers may obtain and consider background check information for hiring and personnel decisions. Given the risk of litigation in an environment where such claims have skyrocketed, we begin by reviewing the technical requirements employers must follow when ordering background checks and making decisions based on the information they contain, and we then address practical steps to take.<\/p>\n\n\n\n

The FCRA Applies \u2014 Even During a Pandemic<\/strong><\/p>\n\n\n\n

Do not 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.<\/p>\n\n\n\n

Generally speaking, before an employer may obtain a background check (also called a \u201cconsumer report\u201d) from a third-party background check provider (also called a \u201cconsumer reporting agency\u201d), 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 \u201csolely\u201d of the disclosure. California\u2019s fair credit reporting statute also requires a separate, stand-alone disclosure, which cannot be combined even with the federal FCRA disclosure. The candidate or employee must also provide written consent for the employer to obtain a background check report. Different requirements exist for \u201cinvestigative consumer reports\u201d (those based on interviews of the individual\u2019s friends, neighbors and associates), and for employers regulated by the Department of Transportation (depending on their hiring practices). Be sure to know what requirements affect you!<\/p>\n\n\n\n

What if the background check raises a concern? Before taking any \u201cadverse action\u201d (such as rescinding a conditional job offer or discharging an employee), the employer must provide the individual with a \u201cpre-adverse action\u201d notice and a copy of the report and the Consumer Financial Protection Bureau\u2019s Summary of Rights. This notice gives the individual an opportunity to discuss the report with the employer before the employer takes an adverse action. Once the employer is prepared to take the adverse action, it must then give the individual an \u201cadverse action\u201d notice, containing certain FCRA-mandated text.<\/p>\n\n\n\n

What if an employer orders a background check on a current employee and discovers a disqualifying conviction? The employer cannot immediately dismiss the employee. Even in those circumstances, the employer still must provide the employee with a pre-adverse action notice. But the employer must also decide whether to allow the employee to continue to work, or place the employee on an administrative leave pending the waiting period. Both options pose risks, and employers faced with this scenario should work with experienced counsel before proceeding.<\/p>\n\n\n\n

California employers that utilize criminal history information for employment purposes must also consider state and local laws that impose additional compliance obligations, regardless of whether the information comes through a consumer reporting agency.<\/p>\n\n\n\n

California\u2019s Ban-the-Box Law Restricts Uses of \u201cCriminal History\u201d<\/strong><\/p>\n\n\n\n

California\u2019s statewide ban-the-box law (Gov\u2019t Code \u00a7 12952) requires employers with five or more employees (subject to few exceptions) to follow certain procedures when requesting and using criminal history information for pre-hire purposes. Specifically, regardless of the source of the criminal history information, employers must:<\/p>\n\n\n\n