The U.S. has experienced seven months of people quitting their jobs at near-record highs and companies struggling to find workers to fill open positions. Contributing to employer and recruiter woes is the fact that background checks are causing a bottleneck in the workforce supply chain. The pandemic created a background screening backlog, with courts constantly opening and closing due to COVID-19 infection spikes. At the same time, states are working to shield their constituents from identity theft by omitting personal information from future court records.

The importance of background screening

A background check is used in the pre-screening process to verify the accuracy of the information an applicant provided on his or her job application and resume. Background screenings aid in mitigating bad hires, ensuring workplace safety, and reducing organizations’ liability and legal costs. A CareerBuilder survey found that 75 percent of HR managers report that they have discovered lies on resumes using background checks. In the U.S., hiring a candidate without legal residency documentation can lead to a fine of up to $10,000 per employee. Beyond fines, hiring a dangerous employee can result in a lawsuit, and hiring a dishonest employee can cost a company due to theft or fraud.

The current state of background screening

A study by HR Research Institute—conducted in partnership with Accurate Background—asked HR professionals in almost every industry vertical about the current state of background checks. Here are some of the key findings from the study:

• 63 percent said that background check delays are due to government slowdowns and shutdowns.
• 61 percent said that screening delays were because government databases are less available.
• 35 percent said that government databases are less frequently updated because courthouses were closed temporarily or only open a few days at a time and had fewer employees working resulting in backlogs to address.
• 29 percent said individual background screenings are taking longer than they did before the pandemic.
• 18 percent indicated that their organization has few employees to conduct the screenings.
• Nearly 25 percent are more concerned about identity theft due to the pandemic.

Criminal history background checks delays

A typical background check reviews the last seven years of an applicant’s history including education, work history, and criminal records. The criminal history screening requires the use of Personal Identifiable Information (PII)—including dates of birth, social security numbers, and driver’s license numbers—supplied by the candidate. Professional background screening companies are often utilized to conduct a criminal record check to determine if a candidate has incarcerations, felonies, misdemeanors, pending criminal cases, or other criminal offenses on record. In many parts of the country, screening companies can explore court records online in a Public Access Terminal (PAT). Delays result when online access to some court records is not available, and a court clerk-assisted search may be required, in which an actual employee of the court searches court records.

The number of states implementing new identity protection rules continues to grow and it’s impacting employer criminal history background screening. These states include court cases in Michigan and California.

• Michigan: A Michigan Supreme Court rule—that would have required Michigan courts to redact all PII on public court records—was slated to go into effect on January 1, 2022. In doing this, the court would have eliminated the ability of professional screening companies to conduct background checks for Michigan businesses. 94 percent of employers conduct background checks, and some are required to do so under state and federal law. In early December, the court adopted an amendment that creates a new “authorized user” approach to gaining access to PII in court records. This method is an attempt to balance the protection of individuals’ identities with the need for background check companies to verify someone’s identity through accessing their records. The court rule will now go into effect on April 1, 2022.
• California: A California Court of Appeals ruling required California counties across the state to start removing birth dates and driver’s license numbers from their online and public access records-retrieval terminals. Criminal-record checks in California will continue to be difficult to impossible. The Professional Background Screening Association (PBSA) Government Relations Date-of-Birth Redaction Task Force is currently executing potential paths to resolution. However, PBSA is predicting that their efforts are unlikely to have any effect before late 2022 at the earliest.

What employers and recruiters should expect in 2022

Background screening is not going anywhere, and employers have to ensure they are maintaining compliance to keep their workplace safe and void of risk. So what can we expect to see in 2022?

A decrease in court backlogs: The good news is that the pandemic-related court backlogs—that slowed down criminal background checks nationwide and affected hundreds of businesses seeking to hire employees and engage independent contractors—should continue to dissipate. However, we may still see closures in places with increased COVID-19 case spikes that may cause delays in the timing of criminal searches.

An increase in data protection: What’s happening in Michigan and California may signal the start of a nationwide shift. While states work to shield their constituents from the invasion of privacy and increase personal data protection, it creates concern for organizations that need to conduct criminal background checks for new hires.

Summary

At a time when employees are in demand and in short supply, background check delays make it difficult for organizations to keep up with operations while they wait to fill job openings. As the hiring manager or recruiter, it’s more important than ever to maintain constant communication with the candidate throughout the entire hiring process. If there is a background screening delay—and it’s not communicated to the candidate—he or she may think the position was offered to another applicant and move on to other offers.

This blog was written by Broadleaf’s Vice President, Client Delivery Joseph O’Shea.