Featured Image - Tips on   Staying Compliant With Background Checks

Tips on Staying Compliant With Background Checks

Date Published: March 08, 2016 | Last Updated: September 15, 2023 | By Tracy Vrchota


This blog was originally published by Recruiting Trends. 

When it comes to background checks, regulations are an undeniable and unavoidable reality. In order to steer clear of costly and unwanted complications, employers need to be properly educated on the ever-changing employment laws. In 2015, new regulations from the Equal Employment Opportunity Commission pertaining to background screening made national headlines on an almost-daily basis. So, what can we expect in 2016? We’ll see a continuation of the hiring regulations that changed the face of employee screening last year.

Ban the Box: So-called “ban-the-box” legislation (prohibiting employers from asking applicants to check a box on an employment form if they’ve been convicted of a crime) gained major traction across the country in 2015 and has even drawn the support of President Barack Obama. Legislation is still pending, but expected to pass, in jurisdictions throughout the country. Keeping up with ban the box is challenging, as adoption varies state by state and its implementation continues to evolve. Initially, the law literally meant not including the checkbox for prior convictions in the initial job application. Now, activists and lawmakers are taking this much further and adding additional requirements.

For example, last year, New York City passed the “Fair Chance Act,” which amended the city’s Human Rights Law regarding ban the box. With this change, not only do employers need to remove the question about prior convictions from their job applications, but they must wait until after a conditional job offer has been extended before inquiring about or considering the prior criminal convictions of the applicant. They must also conduct a specific inquiry evaluating each of the eight factors in Article 23-A (pertaining to New York’s Correction Law) if they want to withdraw the conditional offer. Finally, they must provide the written inquiry and the analysis to the applicant prior to withdrawing the offer, and allow them at least three business days from the receipt of the inquiry to respond to the employer’s concerns.

Credit Checks: Another thing to note is the evolving role of credit checks in employee screening. Many employers will begin to move away from this type of background check as a best practice due to the increasing number of states and jurisdictions with restrictions. Why? Because many argue (depending on the job) that it has no correlation to potential job performance. States, including New York, have also begun passing regulations to formally ban this practice and it is being scrutinized at the federal level as well.

Marijuana: It’s doubtful we’ll see an explosion of regulations around legalized marijuana, as it is still illegal on the federal level. However, employers should ensure they have a clear plan in place regarding how they address the matter in jurisdictions where medical and recreational marijuana is legal. For example, you may be headquartered in a state where marijuana is illegal, but be hiring in a state where it is legal. So what guidelines should you follow? While determining the answer to this and other marijuana-related guidelines may not be at the top of your list, now is the time to understand the facts and get ahead of the game. We can expect to start seeing movement on marijuana legislation with the impending 2016 presidential election and in the years to follow.

Litigation Against Employers: In 2016, we’ll surely see an increase in litigation against employers, particulary in cases related to the Fair Credit Reporting Act—specifically, employers’ disclosure and authorization forms as well as ensuring the employer is following the required adverse-action process. A few high-profile cases have opened the way for more litigation in this area and more are sure to follow. Companies need to protect themselves by ensuring all FCRA-related disclosure and authorization forms are compliant and approvals are secured prior to administering background checks. In addition, they should evaluate their processes in the event they wish to withdraw an applicant’s job offer—or take any other adverse action based, even in part, on the applicant’s credit report—to ensure they’re in compliance with FCRA requirements.

EEOC Guidance: As a bit of background, EEOC Guidance involves the protocols employers must abide by when hiring individuals previously convicted of a crime. This typically includes an individualized assessment that dives into whether the potential employee’s convictions are related to the job. In 2016, the EEOC will continue to look at and monitor employers to make sure they aren’t discriminating in any way, shape or form. For example, employers cannot make any blanket statements, such as, “I will not hire any felons.”

We are seeing more legislation related to providing people with a second chance when it comes to employment consideration. Both the EEOC and local and state governments share this notion and are ready to fight for further opportunities for reformed individuals—and rightfully so. We agree that everyone deserves a job, but not everyone deserves every job. These emerging laws help companies get the information they need to make informed hiring decisions, while giving everyone a fair chance at employment.

This blog was originally published by Recruiting Trends.