Court closures during COVID-19 cause background check concerns

August 26th, 2020

Employers request background checks to verify that a potential hire is who they claim to be and such efforts often include a check of the individual’s criminal record. However, courts across the country are restricting access to prevent the spread of COVID-19, which is resulting in delays in background checks of potential hires, according to Nancy Gunzenhauser Popper, an associate in the employment, labor and workforce management practice at Epstein Becker Green.

“Certainly we’ve seen impacts in states that have been hardest hit by COVID-19, like New York,” Gunzenhauser Popper told HR Dive in an email. “Even if courts haven’t been closed in certain jurisdictions, the background check company may be limited in having their personnel going to the courts, if there are certain shelter-in-place orders or essential business closures that impact the company’s ability to conduct their business.”

Some states offer online searches of court records for a background criminal check; however, it may not be equivalent to an in-person search, Anthony L. Picciano told HR Dive in a phone call. Picciano, the chief compliance officer and director of operations at Integras Intelligence, Inc., an investigative and research services company, said records found in online searches may be incomplete or outdated.

According to the National Center for State Courts (NCSC), online court records are not the same as background checks. “For specific information related to a particular case, you must visit or contact the court in which the action was filed,” NCSC states on its website. The organization also cautioned that in some states the use of information obtained from an online court record “to deny a person employment, deny a rental agreement, or take any other adverse action against a person is prohibited by law.”

Under these circumstances a company could “proceed with the caveat that the offer of employment is contingent upon an actual background check,” Picciano said. However, “if you move forward with someone with a criminal background, that could be a problem,” he added.

Integras Intelligence and other background and identity service providers are sharing with clients how they are addressing court closures. “Courts that utilize electronic record systems will experience little, if any, delay,” Checkr, a background check provider, stated in a recent blog post. “Courts that require in-person records retrieval such as Massachusetts, however, can expect more significant delays.” Checkr also said that a “significant increase in background check reports resulting in a pending status” will occur if the company is unable to access court records in person or electronically.

Some, however, say the disruption is minimal. Sterling, a background check provider, said in a statement that despite closures in many areas during the COVID-19 crisis, it’s still able to complete criminal checks with minimal disruption. “Sterling invests significantly in technology and automation that allows us to electronically access criminal record information,” Sterling President Lou Paglia told HR Dive in an emailed statement. “This technology has always afforded us the ability to perform background screenings with speed and accuracy. Even during this COVID-19 crisis, amidst social distancing and court closures, we are completing more than 95% of our background screenings, enabling us to meet the urgent hiring needs of our clients at this time.”

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