To print this article, all you need is to be registered or login on Mondaq.com.
In March 2020, the world as we knew it shut down. People were
told to stay at home. Factories closed worldwide and shipping
orders were cancelled. Non-essential workers, stuck at home due to
government mandates or illness, were not available to generate or
move many of the materials that, while non-essential, kept the
fabric of our economy going.
Demand, however, did not stop. Many of America’s workforce
found themselves with a new normal and a new way of life —
indefinitely at home, working remotely. Due to Covid-19
uncertainties and precaution, online orders surged. From toilet
paper, to flour for baking bread, to toys to occupy kids, to home
office and remote schooling equipment — demand did not stop
while supply became limited.
These supply chain woes have continued through 2020 and 2021,
with every expectation that they will not be alleviated by
2022.
Companies operating in logistics, manufacturing, and similar
industries are directly impacted by these supply chain issues and
shifts in economic demand. Companies are struggling to get products
on the shelves, are experiencing months of delays, and even seeing
increased costs. Meanwhile, hiring needs have skyrocketed, with the
available workforce options depleted. All of these changes have
combined to impact hiring decisions, the need for criminal
background checks and monitoring, and other health and safety
concerns in the workplace.
Criminal Background Checks In The Age of
Covid-19 More than ever, criminal background
screening and workforce monitoring is critical forworkplace
continuity and safety for employees and customers. Prior to
Covid-19, many businesses handling logistics were focused on
delivering goods and products to a physical retail location for
distribution to customers. Now, that is not always the case. Since
2020, fewer people are visiting brick and mortar locations and
relying instead on deliveries to their homes directly. For
example, recent reports show that the pandemic
more than doubled food-delivery apps’ business. Online sales increased 32.4% year over
year in 2020, reaching over $791 billion in online sales. And
a survey of 3,700 consumers indicated that
they now shop more frequently online.
With these changes to our logistics economy come new
decision-making considerations for employers. Employers —
more than ever — face an obligation to ensure that
contractors or employees delivering goods and services to
customers’ homes are vetted and have had their criminal
history evaluated for eligibility for the work to be performed.
Criminal history that may not have posed a substantial risk in
delivering goods and products to brick and mortar locations may
pose a significantly greater risk when the final location for
delivery is a customer’s home. Meanwhile, employers have
fewer applications in their pipelines, and often fewer viable
hiring options than prior to the pandemic.
Criminal background checks are the first step for a company to
understand the risks posed by its workforce to its customer base.
After a conditional offer is extended to the applicant, companies
should conduct a pre-employment background check that includes
federal, state, and county searches, a nationwide sex offender
registry search, and other information that may be relevant to the
job as permitted by the jurisdiction. In the event that a criminal
background check shows a criminal history, companies should conduct
an individualized assessment to review the nature of the conviction
and individualized circumstances surrounding the conviction against
the requirements of the job. Companies should review and consider
the Equal Employment Opportunity Commission’s
(“EEOC”) factors for evaluating criminal history
information, which include: (1) the nature and gravity of the
offense or conduct; (2) the time that has passed since the offense,
conduct and/or completion of the sentence; and (3) the nature of
the job held or sought. In addition, many states and cities have
their own additional factors for companies to evaluate before
making an employment determination based upon conviction record. By
way of example only, New York State and New York City follow an
eight-factor test set forth in New York Article 23-A that employers
must consider before taking adverse action.
If an employer is considering taking adverse action based upon
its evaluation of the criminal history information or any other
information in the background check, the employer must follow the
pre-adverse and adverse action notice procedures set forth by the
Fair Credit Reporting Act (“FCRA”) at 15 U.S.C. §
1681b(b)(3). Specifically, an employer must send a pre-adverse
action notice to the candidate, together with a copy of the
background check, a copy of the Summary of Rights Under the FCRA,
and a copy of any other notice requirements set forth by state or
local law. After waiting a reasonable period of time, which the FTC
has opined to be five business days but which may be longer in
certain states or cities, the employer may then send an adverse
action notice that rescinds the conditional offer of employment.
Employers should be mindful that there are additional notice
procedures set forth by certain state and local laws that may
exceed these federal requirements.
If a candidate clears the criminal background check, or the
candidate’s criminal history is determined not to be
job-related or pose an unreasonable risk to the customer or the
business, the inquiry does not necessarily end there. Many
employers have opted to conduct recurrent background checks to
ensure that throughout the employee’s employment, it is aware
of any new criminal history that may develop. While companies would
like to think that they would naturally become aware of charges
against an employee or a conviction record, this is not necessarily
the case, particularly in an increasingly remote workforce where
brief absences to attend to court hearings or other legal
obligations may not be as obvious to the employer as in the past.
Recurrent background checks and monitoring are one way to ensure
that businesses become aware of updates on an employee’s
criminal record. Employers should seek legal guidance to ensure
best practices are followed in conducting such recurrent checks or
other criminal background checks.
Other Health and Safety Considerations in Light of
Covid-19
While criminal background checks are a key component in ensuring
workplace safety, employers also need to evaluate and implement
policies concerning vaccination requirements in the workplace, or
if opting not to require vaccination, policies that ensure
compliance with the new Biden Executive Order and/or that otherwise
meet OSHA safety standards. Each employer faces unique industry and
operational drivers that will affect the policies they opt to put
into place. For employers in industrial industries, outbreaks of
Covid-19 in the workplace could shut down factory operations for
weeks at a time, limiting supplies or substantially impacting
revenues, and considerations should be made to mitigate that
risk.
On September 9, 2021, the Biden Administration issued a
six-pronged Covid-19 Action Plan that set requirements for large
employers to mandate vaccination or weekly testing for employees
who work in proximity, among other requirements. Specifically,
private employers with 100 or more employees, federal government
employees, and federal contract workers will now be subject to
mandatory vaccine requirements, with a deadline of January 4, 2022
to comply with the full vaccination requirement. The executive
order is currently subject to challenge by 10 states who have
brought suit alleging the requirements exceed executive authority
and are unconstitutional.
Employers must be mindful of whether they are subject to the new
executive order, and put in place policies and processes to ensure
compliance. If not subject to the executive order, employers should
consider best practices for how they intend to handle vaccination
requirements for their own workforce. Employers are also seeing a
rise in accommodation requests based on religion or disability from
employees seeking to be excused from vaccination requirements set
by their employer. Employers who receive such requests should seek
out legal counsel to ensure compliance with federal, state and
local laws in how they respond to such requests.
Conclusion
Economic changes caused by Covid-19 have created new challenges
for businesses, and in some cases, new responsibilities for
employees. Employers need to evaluate how their internal practices
align with these changes and ensure that processes are in place,
from criminal background checks to other Covid-19 safety
precautions, to comply with legal obligations while maintaining a
safe and secure workplace for employees and business
continuity.
Originally Published by Sterling Check
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
