What’s Hot In Background Checks This Summer Other Than The Heat?

The summer heat is bringing hot topics to the forefront of the Employee Screening Industry. Topics regarding EEOC, Compliance Changes, and hiring trends are all news worthy, but a few issues are garnering more press this summer due to legal changes and heated litigation battles. Topping our list of issues to keep an eye on this summer are Ban The Box, FCRA, and - let’s not let the smoke and mirrors of legalized marijuana get lost in the weeds…. Background Checks.

Let’s take a few minutes to talk about each topic individually.

Ban the Box. This law removes the question about past criminal records from standard job applications. As of now, 17 states have passed some form of removing or moving this check box from standard job applications in an effort to grant reformed ex-offenders a better first impression. Although the past criminal information will still be a part of the employee screening process; delaying this information until later in the interview process may allow reformed offenders a chance to be judged on their skills and knowledge first and their past criminal behavior second.1 Given the changes are still up and coming and include differences for public versus private employees, it’s best to stay on top of this trend as the law develops and make the appropriate changes to your company’s Background Check policies and procedures as needed by sector and state.

FCRA. The amount of FCRA lawsuits have been on the rise in recent years, and so far in 2015, this trend is hotter than ever and more costly than ever. Negligent hiring suits continue to be at the forefront of all involved in hiring including employers and background check firms/vendors. Most lawsuits are due to FCRA violations and failure to comply with due-diligence and procedures. According to Entrepreneur magazine, violations include (but aren’t limited to):

  • “..failure to use stand-alone documents for disclosure and consent for a background checks…”
  • failure to provide pre-adverse action notice to applicant(s) if (the) employer intends to take adverse action based partly on report’s contents, that includes a copy of the consumer report and the statutory summary of rights,
  • and failure to provide adverse action notice 5 business days later.

Since most violations become class action lawsuits and plaintiffs can seek to recover up to $1000 per person, these compliance failures can cost companies millions!

Legalized Marijuana. And last, but not least, what could be a steamier topic than legalized Marijuana and how it affects employment screening and the workplace. First and foremost, all Marijuana is NOT legal in all states and its use is still illegal under federal law. According to a recent article in Forbes, employers in many states are still allowed to reprimand employees who are impaired on the job due to drug use and “any workplace that receives federal funding or is subject to federal regulations requiring the testing of safety-sensitive workers -like the Department of Transportation, for example -must consider marijuana a prohibited substance according to the Drug-Free Workplace Act of 1988.” Companies should still include Marijuana in their drug testing panels and promote a drug free workplace. Being under the influence of alcohol or drugs is still - and should always - remain a workplace safety concern. Continue drug testing and increase random workplace drug testing.

Trust us; you don’t want to stir the ‘pot’ on these topics. Keep the heat at bay this summer and stay out of the weeds - and court!

Blog Post by: Jennifer Holt

Disclaimer: We are not practicing council and this blog is not intended to be legal advice. This blog contains guidelines, but if you want legal advice you will have to consult your attorney.

  1. http://www.natlawreview.com/article/ban-box-trend-continues-across-country
  2. http://www.entrepreneur.com/article/246375
  3. http://www.forbes.com/sites/groupthink/2014/09/30/how-marijuana-legislation-will-affect-drug-testing-in-the-workplace/