The following is provided for informational purposes only and is not intended as legal advice.
A lot has changed in the workplace over the past couple of years. In 2022, that means employers’ adaptations to a rapidly evolving hiring market are now running headlong into the unpredictable and fast-paced world of legislative, regulatory, and litigation changes that always affect the U.S. labor environment.
Given the importance of effective compliance and risk mitigation, employers have every right to be confused and concerned. Where should HR pros and recruiters look for changes that could affect their recruitment processes and hiring decisions?
Here are the top five areas we recommend keeping an eye on.
#5 Expanded screening
Background screening has become a nearly ubiquitous practice. Up to 98% of employers today conduct some level of pre-hire background check. Many organizations have extended their screenings to include candidates for part-time, contract, temporary, and even volunteer positions.
The latest trend, however, is to move from “one and done” background checks to ongoing monitoring. In other words, running background checks on some or all employees throughout their tenures with the organization.
The shift toward routine screening is being driven primarily by safety—protecting fellow employees, customers, workplaces, and the public. Another key reason employers are looking in this direction, though, are negligent retention claims. While we tend to focus on negligent hiring cases, and the importance of due diligence pre-hire, employers must be aware of issues that may arise post-hire if they knew, or should have known, that an employee posed a foreseeable risk to others.
Imagine a commercial driver who receives multiple moving violations in his private vehicle since hiring on with a trucking firm. He later causes an accident while operating company equipment. The employer in this scenario could face potential litigation exposure as arguably they should have been aware of the driving record and removed the individual before any harm was caused. So be aware!
As more and more states legalize medical and recreational cannabis, employers’ drug testing policies have been thrown into flux. For the most part, employers are still permitted to prohibit marijuana use on company premises and during working hours. But legal quandaries remain about what action can be taken based on a positive drug test especially in states that are protecting individual rights over an employer’s rights.
The problem is that cannabis may show up on a drug screening days, weeks, or months after use. Where such use, whether medical or recreational, is legal, it’s an open question how employers can respond.
As a result, lawsuits over firings and other employment decisions have been cropping up. New Jersey and Pennsylvania, in particular, have become litigation hotspots. It’s another topic to address with counsel.
#3 Regulatory Enforcement & Litigation
Enforcement and litigation surrounding existing regulations can also follow trends. Right now, we’re seeing three main areas of concern.
First of all, the Fair Credit Reporting Act remains a popular leverage point. A low threshold of proof required in many cases, a high propensity among employers to settle, and no cap on damages has led to an onslaught in the courts. In fact, FCRA-related lawsuits increased 3.5% from 2020 to 2021 alone.
Packing an even bigger hit is criminal history. Now more than ever, it’s critical for employers to carefully examine how they use criminal history in hiring decisions. Current EEOC guidance indicates that employers should take into account factors like how relevant the offense is to the position, how much time has passed, and whether the candidate has demonstrated rehabilitation.
A final issue is “ban the box” enforcement. To put it simply, if you’re not permitted in a certain jurisdiction to ask about criminal history prior to making a job offer, make sure that you’re not asking!
#2 COVID-19 & Candidate Experience
Since 2020, no trends list would be complete without mention of the pandemic. The central focus today—the labor market.
Impacts vary across industries, but countless employers are struggling to fill positions amidst this Great Resignation. Stiff competition for talent has forced employers to attend far more closely to their candidate experience. Long, clunky hiring processes are out; streamlined, mobile-friendly, candidate-centric initiatives are in.
What’s more, hiring criteria are getting a fresh look. Employers are trying to determine whether a particular job truly requires a college degree, if a positive marijuana test really should be exclusionary, or if “second chance hiring”—bringing on candidates who have a prior criminal history —can enhance equity and opportunity, while also expanding their talent pool.
#1 Criminal History Access
Last but far from least, employers should know that it may be getting more difficult to access criminal records.
For example, a Michigan rulemaking action required redaction of date-of-birth information from county records which caused delays and issues accessing crucial information when fulfilling county criminal record searches in parts of the state. Thankfully, these issues have been resolved so check with your screening provider to ensure they are properly registered in Michigan to receive this information.
Then there’s California. The appears to be moving toward restriction of access to criminal records by date of birth or driver’s license number.
Why does this matter? To conduct compliant, reliable background checks, companies like Asurint require more than just a name. The most frequently used second identifier is date of birth. Driver’s license number and Social Security Numbers (SSNs) are far less frequently used as often they are not readily available on court records. Using multiple identifiers ensures the conviction returned for “Joe Smith” is the same being considered for a position. With some courts in California making it incredibly difficult to obtain these important identifiers, background checks may simply take longer, making it all the more important to work with a provider who can help navigate courts and agencies.
Increase Your Knowledge
For insight, Asurint General Counsel Kelly Uebel expands discusses these compliance concerns in a detailed webinar. Stream or download it to familiarize yourself with the hottest topics, and then schedule a time to discuss appropriate response with your general counsel.
Since 2006, Asurint has been leading the background screening industry forward. The company’s powerful, customizable technology, backed by expert answers and personalized assistance, helps employers hire the right candidates every time, and faster than ever before. Organizations leverage better background checks to reduce manual workloads, minimize compliance risk, promote a safer workplace, and drive insights to boost hiring and recruitment success. Learn more at Asurint.com.