Across the US, hundreds of local county governments have partially or fully shut down in response to COVID-19 concerns. Many more are likely to follow suit in the coming days.

As the only reliable sources for criminal record information are the county and federal courthouses, courthouse shutdowns are delaying many criminal background checks.

Some employers may consider making employment offers contingent on the background check results, except where statute, regulation, or risk factors require that an acceptable background check be completed prior to extension of an offer or start date.

My preferred means of making contingent offers relative to background check results is outlined below. (Note that you may have to modify this process if you are in a ban-the-box/fair-chance-hiring jurisdiction. Feel free to call or email me with questions.)

  1. Before you even order the background check, present your candidate with a WRITTEN criminal history inquiry that covers all of the information about which you may be interested. You can review our sample criminal history inquiry here. Our document includes a place for the applicant to provide any information that might be relevant when you are conducting the individualized assessment, as well. I also have a webinar recording on How to Legally and Meaningfully Discuss Criminal History with Applicants.
  1. Review the information provided by your candidate to determine whether the information they provide suggests a risk based on the characteristics of the position, the age of the offense, the nature of the offense, and other issues that might be relevant (public relations concerns, for example). Our process typically ranks criminal offenses as high, medium, or low risk for a position. I have a webinar recording on How to Fairly and Legally Evaluate Applicants’ Criminal History Information that may be helpful.
  1. If any of the information provided by the candidate does present a risk concern (medium or high risk), have a frank conversation with them about how that information might be relevant to the position. If they provide any additional information during that conversation, have them provide it in writing along with any other documentation they may be able to provide.
  1. If, assuming that the candidate was forthcoming about their history, you are comfortable offering them the position, make them a written employment offer contingent on the eventual receipt of the background check. Be explicit that if the background check produces any additional offenses or information not already divulged by the candidate, the offer may be rescinded or their employment may be terminated, regardless of the information’s relevance to the role. (Dishonesty is always a legitimate reason for disqualification or termination.) Make sure the candidate signs the offer letter or other agreement acknowledging this caveat.
  1. Order the background check. After we process the new order, we’ll let you know if we expect a delay.
  1. Carefully review the background check when it is received. Also note that Imperative makes the reportable information we’ve received to date available to our clients as it becomes available. While we may still be waiting on a single county courthouse to provide us information, there may already be information available to review. This could include completed criminal research, employment or education verifications, or driving records.

Our clients who use this process very rarely have to withdraw the offer or terminate employment.

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