Though 2023 is not unique when it comes to background screening challenges – our business is constantly evolving – employers should note some of the hot issues this year. You should be aware of increased government oversight of automated screening technology, laws limiting access to criminal history and the ever-expanding marijuana legalization.
AUTOMATED SCREENING SYSTEMS
The U.S. Equal Employment Opportunity Commission (EEOC), the Federal Trade Commission (FTC) and the Consumer Financial Protection Bureau (CFPB) are now focusing on automated methods of employment background screening to ensure the information they produce is accurate.
Last year, the CFPB raised concerns about inaccurate identity matching and is considering a rule to amend the Fair Credit Reporting Act (FCRA) to improve such screenings. The EEOC has also expressed concerns about employers using automated screening processes, also known as artificial intelligence, when hiring employees.
Employers should use consistent procedures in their hiring decisions based on information obtained legally through verifiable sources. Avoid random decisions and insist on good-faith efforts with consistency.
LAWS LIMITING ACCESS TO CRIMINAL HISTORY
A movement over the past decade has seen numerous municipalities and states passing “clean slate” and “fair chance” privacy laws limiting the ability of employers to look at applicants’ criminal histories when hiring.
At least 10 states have passed new laws that go live this year, and campaigns are already active in additional states. It’s a patchwork quilt, with laws continually changing in jurisdictions making it challenging for employers to ensure full compliance.
In some ways, these laws make it easier for employers struggling with considering applicants with criminal records on a case-by-case basis since they will no longer have those records to consider. But there’s also a flipside, as employers may not be able to avoid liability for negligent hiring if they were not aware they hired someone with a criminal record.
New state privacy laws in California and Michigan have removed dates of birth as personal identifiers from public records, which screeners use to conduct background checks. Thanks to the great work of the Professional Background Screening Association in Michigan, they were able to resolve this issue with the state providing a registration process allowing access to unredacted records.
MARIJUANA LEGALIZATION
While marijuana possession remains illegal under federal law, most states have legalized the substance for medicinal and in some cases, recreational use. Today, laws expunging marijuana convictions are becoming increasingly common. The movement has caused many employers to consider the removal of marijuana from pre-employment drug tests.
It should be noted, these new state laws do not protect employees under the influence of marijuana while at work. Employers who conduct pre-employment drug screenings should consider how to treat employees who legally use marijuana outside of the workplace.
The information and opinions expressed are for educational purposes only and are based on current practice, industry-related knowledge and business expertise. The information provided shall not be construed as legal advice, express or implied.