Written By ESR News Blog Editor Thomas Ahearn
With certain background checks limited by court, business, and school closures during the Coronavirus (COVID-19) pandemic, some organizations are making job offers to candidates that come with an “honesty clause” that allows employers to terminate employees “if misinformation or omissions are found when standard screening protocols are reinstated,” according to an article posted on the website of HRO Today.
In an article titled “Keeping Compliant During Crisis” written by Debbie Bolla, several experts from the background screening industry were interviewed about the impact of COVID-19, including Attorney Lester Rosen, the founder and chief executive officer (CEO) of leading global background check provider Employment Screening Resources® (ESR), as well as ESR Vice President of Operations Kirk Bogue.
“An honesty clause informs the applicant that any material misstatement or omission is grounds to terminate the hiring process or employment, no matter when discovered,” Rosen, author of ‘The Safe Hiring Manual,’ explained in the article. “That language is needed to protect the employer and put an applicant on notice that if something is discovered later, it may adversely affect their employment.”
Rosen suggested that employers should “act with caution and ensure all information is in alignment” with the federal Fair Credit Reporting Act (FCRA), the U.S. Equal Employment Opportunity Commission (EEOC), and state requirements on the use of criminal records in employment. Rosen recommends the following considerations when dealing with an “honesty clause” when performing background checks:
- There may be a reasonable explanation as to why something was omitted. Trial court cases, for example, can be complicated, and it is not clear to people involved in the court system precisely what happened, leading to honest mistakes. The newly discovered information may not apply to the employee if there is an identification issue.
- Even if the criminal record does belong to the applicant, an employer cannot assume the omission of the record indicates either dishonest or disqualifying behavior. The candidate is still entitled to a pre- and post-adverse action notice under the FCRA, so if the employee feels that anything about the background report is incomplete or incorrect, it can be disputed.
- Under the 2012 EEOC Guidance on the “Use of Criminal Records in Employment” and some state and local laws, the employee is entitled to an “Individualized Assessment.” This means they have the right to make the case and advance any information the employee believes is mitigating about the offense and evidence of post-offense rehabilitation, demonstrating that they may be qualified for the position.
- Employees must also remember the basic rule that a criminal matter cannot be the basis to automatically reject an applicant without further analysis to determine if there is a demonstrable risk to the business that justifies denying employment.
Rosen also suggested rescreening returning workers on a case-by-case basis. “If a background check seems worthwhile before bringing a worker back, an employer should make sure it is commensurate with the risk. It is likely not necessary to do an entire background check, but perhaps, a criminal check of the county or jurisdiction where the applicant resides or where the work is to be performed,” he said.
In addition, substitutions for verifications must also be made as employers conduct due diligence prior to making an offer. “In cases where we must verify employment and education, employers are accepting supporting documentation from the candidate, such as W2s (salary redacted where prohibited by law or company policy) and transcripts from their college or university,” Bogue explained in the article.
Coronavirus (COVID-19) is a potentially deadly respiratory illness that spreads from person to person. As of June 24, 2020, there are more than 9.2 million total confirmed global cases and more than 477,000 total global deaths, while the United States leads the world with more than 2.3 million total cases and more than 121,000 total deaths, according to research from Johns Hopkins University.
In 2019, Employment Screening Resources® (ESR) – which Rosen founded in 1997 – was named to the 2019 HRO Today Magazine’s Baker’s Dozen Customer Satisfaction Ratings for Pre-Employment Screening, ranking third on the lists of Overall Enterprise Leaders and Enterprise Quality of Service Leaders, and in the top ten for Enterprise Breadth of Service Leaders and Enterprise Size of Deal Leaders.
Employment Screening Resources® (ESR) – a leading global provider of background checks – is using background check best practices during the Coronavirus crisis, has released a white paper about background checks in the age of Coronavirus, and has posted blogs on the ESR News Blog about the COVID-19 pandemic. To learn more about ESR, visit www.esrcheck.com.
NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.
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