Blog, Resources
In the ever-evolving landscape of employment law, staying updated with the latest regulations is crucial for employers conducting pre-employment background checks. With new laws and guidelines emerging in 2024, understanding these changes can help businesses remain compliant and avoid potential legal pitfalls. This article highlights the most recent legal updates affecting pre-employment background checks.
1. Cannabis Use and Drug Testing
Several states have introduced new laws affecting how employers handle cannabis use and drug testing in pre-employment screenings. In California, AB 2188 and SB 700, effective January 1, 2024, make it unlawful for employers to discriminate against employees for off-duty cannabis use or for positive drug tests that detect non-psychoactive cannabis metabolites (National Law Review) (Hiring To Firing Law Blog). Washington has implemented similar regulations, restricting employers from making hiring decisions based on off-duty cannabis use or drug test results that show non-psychoactive cannabis metabolites (National Law Review).
2. Clean Slate Laws
Clean Slate laws, which aim to automatically expunge certain criminal records, are gaining traction to help reduce employment barriers for ex-offenders. States such as California, Colorado, Connecticut, Delaware, and New York are implementing or expanding Clean Slate laws in 2024, enabling courts to automatically clear eligible criminal records after a specified period (National Law Review) (Hiring To Firing Law Blog). These laws differ from “Ban the Box” laws by completely removing certain criminal records to aid fair chance hiring (CIPD).
3. Form I-9 Changes
The U.S. Citizenship and Immigration Services (USCIS) has introduced a simplified Form I-9 for verifying employee eligibility to work in the U.S. Employers using E-Verify can now review documents remotely via video call, a significant change from the previous requirement of physical document examination (California Labor Law). This update aims to streamline the compliance process for employers.
4. EEOC Guidance on AI in Hiring
The Equal Employment Opportunity Commission (EEOC) has released updated guidance on the use of artificial intelligence (AI) in employment decisions. This guidance, issued in May 2023, addresses potential biases and ensures compliance with Title VII of the Civil Rights Act (Venable LLP). Employers are encouraged to evaluate AI systems to avoid unintentional discrimination and adhere to the new regulations.
5. Updated FCRA Summary of Rights
The Consumer Financial Protection Bureau (CFPB) has updated the “Summary of Your Rights Under the Fair Credit Reporting Act” form, which employers must use from March 20, 2024 (Venable LLP). This update includes changes to federal agency contact information, ensuring that the form remains current and informative for applicants.
Staying compliant with the latest legal updates in pre-employment background checks is essential for all employers. With new regulations on cannabis use, Clean Slate laws, Form I-9 procedures, AI in hiring, and FCRA guidelines, navigating these changes can be challenging. By partnering with SELECTiON.COM®, employers are equipped with the necessary tools to ensure their background check processes are accurate. It is important to emphasize that SELECTiON.COM® does not provide legal advice or services that enhance the legal standing of employers’ processes.
For more information on how SELECTiON.COM® can assist with your background check needs, visit our website or contact us today.
This article gives a general overview of legal matters. However, it is your responsibility to ensure compliance with all the relevant federal, state, and local laws governing this area. SELECTiON.COM® does not provide legal advice, and we always suggest consulting your legal counsel for all applicant approval matters.
This article is provided for information purposes only, and the contents hereof are subject to change without notice. This article is not warranted to be error-free nor subject to any other warranties or conditions, whether expressed orally or implied in law, including implied warranties and conditions of merchantability or fitness for a particular purpose.
Blog, Resources
In the modern era of hiring, Artificial Intelligence (AI) has emerged as a powerful tool, promising to revolutionize the recruitment process with its efficiency, precision, and innovation. However, as organizations increasingly turn to AI for conducting background checks, it’s essential to recognize and address the legal risks and challenges associated with its use.
The Promise of AI in Hiring
AI offers a multitude of benefits in the realm of background checks. By automating repetitive tasks and analyzing vast amounts of data, AI-driven solutions can streamline the screening process, identify relevant information, and generate comprehensive reports with unprecedented speed and accuracy. Moreover, AI algorithms can help mitigate bias and improve the overall fairness of hiring decisions by focusing solely on relevant criteria and removing human subjectivity from the equation.
Legal Challenges and Concerns
Despite its promise, the use of AI in background checks presents a host of legal risks and challenges that organizations must navigate carefully. One of the primary concerns is compliance with relevant regulations, such as the Fair Credit Reporting Act (FCRA) in the United States. The FCRA imposes strict requirements on the use of consumer reports for employment purposes, including obtaining consent from the candidate, providing disclosure and transparency, and ensuring accuracy and fairness in the reporting process.
AI-driven background check solutions must adhere to these legal requirements to avoid potential violations and associated legal consequences. For example, if an AI algorithm generates inaccurate or biased results that adversely affect a candidate’s employment prospects, the organization could face allegations of non-compliance with the FCRA and other anti-discrimination laws.
Moreover, the opaque nature of AI algorithms presents challenges in ensuring transparency and accountability in the background check process. Candidates have the right to know how their information is being collected, used, and evaluated in the hiring process. However, the complexity of AI algorithms makes it difficult to provide clear explanations or insights into the decision-making process, raising concerns about fairness, accountability, and the potential for discrimination.
Practical Solutions
In light of these legal risks and concerns, maintaining human oversight of AI-driven background checks is imperative. While AI algorithms can enhance efficiency and accuracy, human judgment is essential for ensuring compliance with legal regulations and mitigating the potential for bias and discrimination. Human oversight provides a crucial layer of accountability and transparency in the background check process. Organizations can ensure that AI-generated results are scrutinized for accuracy, relevance, and fairness by involving human decision-makers. Human reviewers can also identify and address any potential biases or inaccuracies in the algorithm’s output, helping to minimize the risk of legal liability.
Developing a clear set of guidelines for evaluating AI-generated background check results is crucial. These guidelines should outline the criteria for assessing the relevance, accuracy, and fairness of the information obtained through AI algorithms. In the context of criminal records, clear guidelines are particularly important for determining whether specific convictions will disqualify a candidate from employment. Organizations should consider factors such as the nature and severity of the offense, the time elapsed since the conviction, and evidence of rehabilitation. By establishing transparent criteria, organizations can make informed and consistent decisions while also providing opportunities for individuals with criminal records to reintegrate into the workforce.
Organizations must ensure compliance with legal regulations such as the FCRA when using AI-driven background check solutions. This includes obtaining proper consent from candidates, providing disclosure and transparency about the use of AI algorithms, and ensuring accuracy and fairness in the reporting process. Additionally, organizations must be prepared to provide candidates with the necessary notifications as required by the FCRA, including adverse and pre-adverse action letters, to protect candidates’ rights and mitigate the risk of legal liability.
In summary, while AI offers significant potential to revolutionize the background check process, organizations must carefully navigate the legal risks and challenges associated with its use. By maintaining human oversight, developing clear guidelines, and ensuring compliance with relevant regulations, organizations can harness the benefits of AI while mitigating legal risks and promoting fairness and accountability in the hiring process.
Contact us today to see how SELECTiON.COM® can improve your background check process.
This page gives a general overview of legal matters. However, it is your responsibility to ensure compliance with all the relevant federal, state, and local laws governing this area. SELECTiON.COM® does not provide legal advice, and we always suggest consulting your legal counsel for all applicant approval matters.
This page is provided for information purposes only, and the contents hereof are subject to change without notice. This page is not warranted to be error-free nor subject to any other warranties or conditions, whether expressed orally or implied in law, including implied warranties and conditions of merchantability or fitness for a particular purpose.
Blog, Resources
In the dynamic landscape of employment law, staying abreast of legal developments is paramount for businesses and individuals alike. One ruling that has sparked significant discussion and implications recently is the California Court of Appeal decision in All of Us Or None Of Us v. Hamrick, which could potentially reshape the realm of employment background checks in the state.
Issued on 05/26/2021, the ruling stems from a civil rights complaint filed in Riverside, California, by a Civil Rights Organization advocating for the rights of former and currently incarcerated individuals. At its core, the case addresses concerns surrounding the accessibility of Personally Identifiable Information (PII) on public access portals, particularly in Los Angeles County.
A key aspect of the ruling mandates the redaction of all PII other than the name from public access portals. While this move aims to safeguard the privacy rights of individuals involved in the criminal justice system, it presents a significant challenge for background check companies and employers conducting pre-employment screenings.
Under the Fair Credit Reporting Act (FCRA) guidelines, obtaining additional identifiers beyond just the name is often crucial for thorough background checks. However, with the new requirement limiting the number of names per full docket order to access such information, the process becomes more cumbersome and time-consuming. As a result, delays in background check completion ranging from a week to several months are anticipated. Most searches that are clear will be completed within 48 to 72 hours. However, if additional research is needed to clarify a record, a full docket must be ordered.
The ramifications of this ruling are far-reaching, impacting employers across various industries. In an era where hiring decisions are increasingly scrutinized, ensuring compliance with evolving legal standards is essential to mitigate risks of legal action and reputational damage. Employers in California must navigate these changes with diligence and adapt their hiring practices accordingly. It’s imperative to strike a balance between conducting thorough background checks to ensure workplace safety and compliance with legal requirements while also respecting the privacy rights of job applicants.
As the legal landscape surrounding employment background checks continues to evolve, businesses must stay informed and adaptable to ensure compliance and integrity in their hiring processes. At SELECTiON.COM®, we understand the complexities and challenges presented by regulatory changes such as the recent California Court of Appeal ruling.
By partnering with SELECTiON.COM®, businesses can benefit from our comprehensive understanding of regulatory requirements and access to cutting-edge technology and resources for efficient and reliable background screening solutions.
In an era where hiring decisions are subject to increasing scrutiny and legal complexity, trust SELECTiON.COM® to be your partner in navigating the ever-changing landscape of employment background checks with confidence and peace of mind.
Contact us today to see how SELECTiON.COM® can improve your background check process.
This page gives a general overview of legal matters. However, it is your responsibility to ensure compliance with all the relevant federal, state, and local laws governing this area. SELECTiON.COM® does not provide legal advice, and we always suggest consulting your legal counsel for all applicant approval matters.
This page is provided for information purposes only, and the contents hereof are subject to change without notice. This page is not warranted to be error-free nor subject to any other warranties or conditions, whether expressed orally or implied in law, including implied warranties and conditions of merchantability or fitness for a particular purpose.
Blog, Resources
Businesses are required to let an applicant know why they were rejected. Thanks to the Fair Credit Reporting Act (FCRA), there are laws put into place to make sure applicants are informed of their rights. Failure to implement this step of the background check process now can mean costly litigation in the future.
The Importance of Being FCRA Compliant and Sending Adverse Action Letters
If a company decides not to hire an applicant due to their background check, regardless of the reason, the company is obligated to notify the applicant. FCRA guidelines mandate that the company must send the applicant a Pre-Decision Letter notifying them of the potential for adverse action based upon information uncovered during the pre-employment screening. Adverse action is a denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee, according to the FCRA.
What is a Pre-Decision Letter?
A pre-adverse action letter is a notice to the applicant that the company might not hire them due to information uncovered during their background check. This initial mailing must also include a copy of their background check and a Consumer Rights Letter. Keep in mind that this letter is not the final decision notice.
According to the FCRA, if a criminal background report contains information which “in whole or in part” may cause you to take any adverse action, including rejecting that candidate for employment, denying a promotion, or terminating a current employee, then you must provide a copy of the report to the applicant and the CFPB’s summary of rights prior to making your decision final.
It’s suggested that you wait 4-5 business days after you mail a copy of the report and the summary of rights, before contacting the applicant with your final decision. By sending a Pre-Decision letter, this allows time for the applicant to address or dispute any incorrect information before the company makes their final decision.
What is an Adverse Action Letter?
It is a final notice that informs the applicant the company decided to either not to hire them, cancel their offer of employment, or terminate their employment.
Failure to follow the above proper procedure could lead to litigation.
SELECTiON.COM® stays up-to-date on all FCRA regulations and provides the tools to keep you compliant with the click of a button via our proprietary web portal, Fastrax®. We offer pre-populated Pre-Decision and Adverse Action Letters free of charge on your custom dashboard, or by checking a box, our clients can choose to have our in-house staff do the mailings for them.
If you don’t know what the Summary of Rights or Adverse Action forms are, not to worry, we have you covered! These forms are conveniently available on the Fastrax® website.
Contact us today to see how SELECTiON.COM® can improve your background check process.
Blog, Resources
The world is (hopefully) getting back to normal soon now that vaccines are readily available to the general public. That means we can move back into our offices and begin the daily grind alongside each other once again. Right? That may be true for some, but many companies will likely decide to keep part of their workforce remote or offer flex positions.
The COVID-19 pandemic has fundamentally transformed the office workspace. A recent study by LiveCareer found that 61% of employees want their employer to let them work in a remote capacity indefinitely. Also, 29% of working professionals go so far as to say that they would quit if they had to return to the office after the pandemic. That leaves companies set on returning to the typical 9-5 in-office workspace in quite a predicament.
If you were one of the many companies delaying implementing remote positions pre-COVID-19, you weren’t alone. Among many reasons, companies feared productivity issues would be a logistical nightmare. And, while there have certainly been some bumps along the way, many companies have effectively implemented remote positions. A recent survey by Mercer, a human resources and workplace benefits firm, showed 94 percent of 800 employers surveyed indicated productivity was the same or higher with their employees working remotely.
Many companies are considering drastically downsizing their office space for the coming year and offering flex positions.
According to a survey from the consulting firm, PwC found that executives and employees are converging around a post-pandemic future with a lot more flexibility, yet few are prepared to completely abandon the office space. As a result, by design or default, most companies are heading toward a hybrid workplace where a large number of office employees rotate in and out of offices configured for shared spaces.
That seems to confirm LiveCareer’s further findings. Thirty percent of professionals surveyed said that if going back to the office is inevitable, they’d like to work there three days a week. Twenty-five percent said two days a week, and 19% said one day. Just 9% said four days.
So, what does this mean for you? And how does this affect hiring and background checks?
Remote hiring was likely a fast-tracked implementation for many, so now is the perfect time to reflect on what did and did not work over the last year. What steps of the hiring process can now be improved and secured?
Here are our hiring tips for the post-COVID-19 reality:
- Clearly define your background check requirements per position. The Equal Employment Opportunity Commission (EEOC) already recommends this to avoid disparate impact. Adding fully remote or flex job offerings may change the background check selection, so be sure to appropriately update your handbooks or hiring guidelines.
- Be sure to make it clear if you plan on making a currently remote position in-house once the pandemic is over.
- Are you going to offer flex positions? If so, be clear on when they are expected to be in the office. For example, will it be one or two specific days a week or days of their choosing, etc…
- If you require a video interview, be sure to use an application compatible with the most common devices, such as Apple, Android, and Windows.
- There has been a significant shift in how people shop, resulting in an uptick in hacker activity and an increased need for cybersecurity. Therefore, it’s more important than ever to partner with a background check company that offers an easy-to-use and secure online portal for applicants to enter personal information.
In addition to everything above, it’s important to note that while EEOC recommendations will likely evolve with the new remote/flex working reality, the requirement of strict Fair Credit Reporting Act (FCRA) regulation adherence remains the same.
- Always obtain a signed release form.
- If a person is denied the position, regardless of the reason, always send a copy of their background check, a Pre-Decision letter, and a copy of their consumer rights.
- Follow up with an adverse action letter five business days later.
In these uncertain times, it pays to have a trusted partner who can provide the data you need and the customer support to answer all your questions. Our unparalleled support, combined with our nationwide researcher network, makes SELECTiON.COM® a valuable background check partner.
Our five-star customer support team is not only industry experienced but tenured in their time with our company. Our staff is available to you via phone, email, and chat, Monday through Friday, from 8 am to 8 pm.
SELECTiON.COM® offers employment and education verifications, character reference reports, criminal history reports, and our Search America® locator tool is the largest in the industry with other 1 billion records.
Contact us today to develop a fast and accurate background check program to meet your needs.
NOTE: This article gives a general overview of legal matters. However, it is your responsibility to ensure compliance with all the relevant federal, state, and local laws governing this area. SELECTiON.COM® does not provide legal advice, and we always suggest consulting your legal counsel for all applicant approval matters.
Blog, Resources
According to the U.S Department of Justice’s Bureau of Justice Statistics (BJS), over 90 million individuals, approximately 30% of the population in the country, have a criminal record on file in state criminal history repositories.
This statistic does not include traffic infractions (e.g., improper turns, parking violations, failure to stop, some speeding violations, among others) which are the most common form of infractions and also do not appear in criminal records (when they are paid, or the court citation was fulfilled), because traffic tickets are classified as infractions and are considered non-criminal offenses.
Misdemeanors (e.g., Driving Under Influence (DUI), disorderly conduct, use of controlled substances, simple assault, among others) are more serious offenses than infractions and appear in criminal records. In some circumstances, a misdemeanor can escalate to a felony. Felonies are the most serious types of crimes (e.g., DUI that causes injury, serious bodily injury or death, murder, robbery, aggravated assault, rape, among others). Like misdemeanors, felonies also appear in the criminal history on file in state criminal history repositories.
Criminal records vary from one-time arrest, where charges may be dropped completely, to violent, serious, and lengthy criminal histories. The BJS statistics show that the majority of arrests are for non-violent and minor offenses, only 4% of the arrests are for felonies, and most arrests, both misdemeanors and felonies, do not end in a conviction.
According to the Society for Human Resource Management, nine out of ten employers run criminal background screens on applicants as part of their hiring process. Employers require consumer reports in order to ensure a safe work environment for employees and to assess the overall trustworthiness of the job candidate. Background screenings also reduce theft, embezzlement and other criminal activity. Some background screenings are required by state law for a position such as a teacher or licensed medical practitioner. Employers are not only protecting the company’s reputation but are also reducing the risk of legal liability for negligent hiring. Thus, in the selection process, some companies reject applicants who have criminal charges.
Employers should be aware that it is highly likely that consumer reports may have negative information about the applicants. In these instances, a greater understanding is important to dispel some employers’ myths or paradigms. “The fact of an arrest does not establish that criminal conduct has occurred. Arrests are not proof of criminal conduct. Many arrests do not result in criminal charges or the charges are dismissed,” according to the Equal Employment Opportunity Commission (EEOC). By contrast, records of convictions of crimes will usually serve as sufficient evidence that a person engaged in improper conduct.
Finding a point of balance and justice between millions of people with criminal records at the time of getting a job and the legitimacy of the employers to not consider an applicant for employment based on their criminal records, has become a great challenge. The law, jurisprudence, and institutions like the EEOC have all weighed in on this situation.
First, the Fair Credit Reporting Act restricts Consumer Reporting Agencies (CRA’s) reporting any non-convictions older than 7 years, unless the applicant is expected to earn 75,000 or more annually [15 U.S.C. 1681c (a) (2) (5)]. Some state laws and local ordinances also restrict CRA’s from reporting non-convictions regardless of age.
Thereby, the large number of applicants who have criminal records are not marked for life because non-convictions (records of arrest and certain adverse information) are not reflected in the consumer reports with the passage of some years and may not be reported at all. These restrictions create a point of balance between employers and applicants with criminal records. For employers, they can still know relevant information about the applicant, like convictions, and for the applicants because not all the information about their criminal history may be disclosed. SELECTiON.COM® works diligently on compliance with federal and state law regarding these restrictions.
Second, the jurisprudence has cited three factors that employers shall seriously consider in their hiring policies when the applicant has a criminal record (Green v. Missouri Pacific Railroad, 549 F.2d 1158, 8th Cir. 1977). The three factors are; the nature and gravity of the offense or conduct; the time that has passed since the offense, conduct and/or completion of the sentence, and the nature of the job held or sought.
Finally, the EEOC has consolidated and updated enforcement guidance regarding the use of arrest or conviction records in employment decisions. The guide describes two types of discrimination in employment decisions, disparate treatment and disparate impact. According to the EEOC, disparate treatment means “a violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin.” For its part, disparate-impact liability may occur when “an employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII and may violate the law if not job-related and consistent with business necessity,” the guide explains.
It is very important for decision-makers, hiring officials, and managers to know the law, jurisprudence, and the EEOC enforcement guidance to allow employers to make hiring decisions appropriate and equitable, without engaging in discrimination.
In conclusion, employers are challenged to provide this large number of individuals the opportunity to apply, be considered, and hired for a job. In the end, it is in the employer’s hands to analyze the seriousness of the applicants’ conduct and create a balance between an opportunity and responsible hiring.
This article gives a general overview of the legal matters. However, it is your responsibility to ensure compliance with all the relevant federal, state, and local laws governing this area. SELECTiON.COM® does not provide legal advice, and we always suggest consulting your own legal counsel for all applicant approval matters.
