1.Access to Criminal Data Faces Severe Limitations
Legislators and courts around the country are making data more difficult to obtain for background screeners and their clients. This trend is moving throughout the country and is expected to continue in 2020.
a. Access to Records
Although the court records utilized by background screeners are considered public records, the courts have been limiting access over the past few years. Some limitations relate to the removal of personal identifying information (PII), making it difficult to ensure the record belongs to a specific applicant. Other limitations relate to court personnel refusing to share the records at all. An example is the Clerk of the District Court of Benton County, Arkansas, who withheld entire court records. The Professional Background Screening Association (PBSA) took them to court and fought for the right to have access.
b.Sealing/Limiting Records
Last year saw many states and localities automatically sealing convictions under Clean Slate Acts. Pennsylvania became the first state in the country to pass a Clean Slate Law, automatically sealing certain criminal records via technology. The law went into effect in June of 2019 and the process of sealing records officially began. Pennsylvania courts have until June 27, 2020 to seal more than 30 million records. Two other states, Utah and California, followed in Pennsylvania’s footsteps shortly thereafter. Michigan also recently introduced similar legislation. Localities are joining in as well, with prosecutors in both Los Angeles and Chicago erasing thousands of marijuana convictions from criminal records, clearing nearly 18,000 misdemeanor convictions for possessing less than an ounce of marijuana.
As this trend continues, employers are increasingly concerned that the candidate who was reported as “clear” may still have a criminal background. The legislation thus far relates to older charges and minor drug possession charges. However, employers will want to keep an eye on legislation that may further restrict access to criminal record information, potentially impacting the safety of workplaces, properties, customers, employees, and tenants. Going forward, employers should discuss the reporting used by their background screening providers to help ensure they have appropriate access to their candidates’ criminal histories.
2.Courts Continue to Debate FCRA Application to Independent Contractors and Other Non-Traditional Employees
The issue of whether the FCRA requirements apply to independent contractors has recently been brought back to the forefront. Contrary to the long-standing liberal interpretation of “employment purposes” from the Federal Trade Commission (FTC), which does include independent contractors, agents, and volunteers in its definition, some courts held last year that the protections afforded when consumer reports are obtained for “employment purposes” under the FCRA do not extend to reports obtained for independent contractors.
As most people are aware, the FCRA requires that disclosures are clear and conspicuous and in stand-alone documents when the report is obtained for “employment purposes.” “Employment purposes” is defined in the FCRA as “a report used for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee.” (emphasis added)
The evolution of this issue demands attention. While there appears to be a trend for employers under these circumstances, they should still exercise caution, as some courts have also taken, and may continue to take, a broader view of the term “employment purposes.” Until there is more clarification, employers may consider treating independent contractors the same way they would treat employees for the purpose of the FCRA’s requirements. In doing so, they would be well-advised to create a separate background screening policy for independent contractors, rather than including them in the employee background screening policy. Modifying forms to refer to the applicant as an independent contractor and not as an employee could help to avoid the question of the status of that work relationship for other reasons later.
3. Privacy Laws Increasingly Impact Background Screening
Privacy concerns permeate almost everything we do now, especially with the increase of online “living.” These concerns affect not only consumers, but also the companies that must securely maintain and dispose of records containing sensitive information.
The Federal Trade Commission regulates business privacy laws and policies in the U.S. that impact consumers, including the Fair Credit Reporting Act, which governs background checks and provides guidance on best practices businesses should follow to keep data secure. Additionally, post-2018, the European Union’s General Data Protection Regulation (GDPR) mandates action by companies and institutions around the world. 2019 saw the imposition of many penalties under the GDPR, but none as large as the 50-million-euro penalty imposed against Google last January. State privacy regulations are now also coming into play more than ever. For example, California’s Consumer Privacy Act (CCPA), which some are calling the U.S. version of the GDPR, creates new consumer rights relating to the access to, deletion of, and sharing of personal information that is collected by businesses.
With more consumers exercising their privacy rights, and with more avenues to do so, an increase in privacy-related litigation will ensue. Businesses should stay abreast of all privacy laws and regulations affecting them. In addition to following the FTC’s guidance on the proper data security practices, businesses that utilize a consumer reporting agency for their background screening services should be sure to partner with one that has achieved accreditation with the Professional Background Screeners Association(PBSA) Background Screening Credentialing Council (BSCC). The Background Screening Agency Accreditation Program (BSAAP) standard, policies and procedures, and measurements are available at http://www.pbsa.com.
4. Companies Begin More Rigorous Screening Practices for Third-Party Vendors and Contractors
As companies continue to outsource various functions of their business, the need for a comprehensive screening policy to cover the third-party vendors and contractors with whom they work will be vital in protecting their interests. Nothing is more evident of this need as the tragic story of the Florida grandmother killed by a delivery worker contracted by Best Buy. While the delivery worker was employed by a third-party company hired by Best Buy for deliveries, it is Best Buy that is named in the lawsuit.
With cases like this in the news and some states beginning to address the issue (Florida has recently introduced a bill to require background checks on third-party delivery companies), companies will not only need to assess their own screening criteria, but also that of their vendors and contractors to ensure the same criteria is applied. Confirming that each vendor and contractor follows the same screening requirements is crucial to keeping the company, its employees, and its customers safe.
5. Employer Policies Require More Updates and Reviews Due to Increase in Laws Impacting Employers
More states are enacting legislation that affects employers, employees, and job applicants at an increasing rate. As they do so, employers must update their policies and procedures on a regular basis to remain in compliance. This is especially true for employers conducting business across state lines, as each state’s laws have their own nuances, to which employers must adhere.
Background and Drug Screening Policies should be reviewed to update for the latest changes in the industry, including, but not limited to, Salary History Bans and Ban the Box laws. What can and cannot be asked during the interview process should be clearly documented in the company’s Hiring policies. Drug Screening policies, also known as Substance Abuse Policies, should include how CBD use is handled and reasonable accommodations as it relates to medical marijuana and the American Disabilities Act. Attention to the state and local laws are more important than ever in this area. Other policies that should be reviewed are Equal Pay and Wage Discrimination policies, with the onslaught of salary history laws making its way around the country, and any Safe Driving policies, with new cellphone laws being enacted at an increasing rate.
6. The Evolution and Confusion Related to Drug Screening Continues
a.Oral Fluid Testing and D.O.T. Mandatory Guidelines Result in Employment Drug Testing Changes
For many years, urine drug tests were used more frequently than any other drug test for employment screening. However, the last couple of years have seen the emergence of more options, some of which are far more convenient and accurate. Specifically, more employers are using oral fluid, lab-based testing, which is considered better at detecting recent drug use than urine and hair drug tests. According to Quest Diagnostics, “[b]y using oral fluid instead of urine, donors can collect their own samples on-site and in the presence of a monitor, reducing the likelihood of tampering or a donor challenge later in the screening process.”
Last year also saw the Substance Abuse and Mental Health Services Administration (SAMHSA), part of the U.S. Department of Health and Human Services (HHS), establishing guidelines to include oral fluid specimens in the Mandatory Guidelines for Federal Workplace Drug Testing Programs. The new Mandatory Guidelines for Federal Workplace Drug Testing Programs using Oral Fluid (OFMG) allows for the collection and testing of oral fluid specimens by federal executive branch agencies and other agencies, including the Department of Transportation and Nuclear Regulatory Commission (NRC). This is the first time a new drug screening test has been added since the guidelines were first published in 1988, requiring only urine specimens.
Oral fluid, lab-based testing has begun to establish itself as the most efficient and accurate drug test in the industry. And, now with the federal guidelines in place, the trend will continue in 2020, with more businesses turning to this method.
b. Lawsuits Increase Surrounding Marijuana and CBD Use
If you are an employer who conducts employee drug testing, you have probably been asking some familiar questions recently, namely, among others: Do I have to accommodate marijuana use? Can I still have a drug-free workplace? Can I get sued for terminating an employee for a drug test that is positive for marijuana?
Marijuana continues to remain a Schedule I substance under the Controlled Substance Act, making it illegal for any reason under federal law. However, more than half of the states across the country disagree and have now legalized marijuana for either medical or recreational use. Each state’s law also has its own nuances. This inconsistency among states and between states and the federal government leaves many employers asking what the changing laws mean for their existing drug screening policies.
Legislation up to this point has focused on legalizing marijuana for medical or recreational use. However, in 2019, Nevada, following in New York City’s footsteps, became the first state to prohibit employers from refusing to hire a prospective employee because he or she submitted to a screening test and the results indicate marijuana. Nevada’s law became effective January 1, 2020, while New York City’s becomes effective May 20, 2020.
To further complicate matters is the now fairly widespread use of CBD products. While it is not marijuana, per se, use of CBD could still lead to a positive marijuana drug test. Since CBD has not yet been regulated, and many products contain THC, the component in marijuana that results in a positive result, more applicants and employees may unknowingly fail a drug test. We expect this area to continue to cause major issues among employers.
The year 2020 is already shaping up to be one of the biggest years for marijuana-policy reform. Many state legislatures will seriously consider cannabis legalization and voters in other states could face a question about the legalization of cannabis for medical or adult use on their November ballots.
7.Applicants Have Higher Expectations Regarding the Candidate Experience
Today’s job candidates are accustomed to streaming, texting, video conferences–basically, instant gratification. Even email seems slow to those emerging into the workforce. When it comes to interviewing for a job and having their background check conducted, they expect the same swiftness they have been surrounded with their whole lives. In fact, Glassdoor polls show that more than half of job-seekers would consider pulling out of a lengthy selection process. They want to see that their time is valued and if it’s not, they are not afraid to go to social media to express their negative opinions of that business.
Employers should begin to take these factors into consideration, if they haven’t already, with response time involved, interview techniques, and the background screening process. In 2020, employers may start considering what processes can be implemented to make the experience more streamlined and faster, without sacrificing quality. Additionally, and maybe most importantly, can any of the processes become mobile-friendly? Overall, employers should start looking to improve the entire on-boarding experience by focusing not just on what they need, but also what their applicants need.
8.State and Local Limitations on What Can and Cannot be Done by Employers Increase
There are more jurisdictions, both at the state and local levels, with Ban the Box laws and Salary History Bans than ever before. Additionally, more states have enacted various types of marijuana laws, as discussed more in depth above. Together, these laws, and others like them, severely restrict the information to which a prospective employer has access in order to make hiring and promotion decisions.
The substantial increase in these types of laws, coupled with criminal justice reform that is just beginning to scratch the surface, is leading employers down a path they do not want to go–having to make hiring, promotion, and other business decisions with only limited information on their applicants and/or employees. While the reasoning behind these laws is sound, unfortunately, there is not much in terms of protecting the employers.
In 2020, employers will, unfortunately, continue to struggle with the need to balance their decision-making process in the face of compliance with all of these laws and the effective running of their businesses, including protection of their customers and property.
9.Continuous Monitoring Becomes More Commonplace
Industries other than on-demand industries, such as Uber and Lyft, have begun to realize the benefits of continuous background screening monitoring over the past couple of years and we expect this to continue. Technology has made it easier than ever to continuously monitor employees for indications of illegal behavior or reckless driving reports. Employees not only represent a company’s brand, but also could have access to financial and other confidential information. Not having trustworthy employees can lead to loss of productivity, workplace safety, and theft.
As 2020 brings continuous monitoring, it also brings continuous compliance. Employers must make sure to have the employees’ consent to continue to conduct background screenings. Additionally, employers should ensure the technology used is providing objective recommendations, with no perceived or actual built-in biases.
10.Global Screening Programs Evolve
With a now firmly established global economy and more companies employing individuals across the globe each day, having a comprehensive global screening process is crucial to a company’s success. The information required, as well as the results available, will vary from country to county, as will the privacy laws affecting access. As such, companies are seeing the need for a global screening program in order to have a flexible process to account for the varying laws, requirements, and of course, the cultural differences. This need will continue to expand in 2020 and beyond.
Companies are understanding that the old notions that a global screening program is not worth it, too expensive, or too time-consuming are simply not the case. Rather, they want to know where candidates have lived, where they have studied, where they have worked, regardless of whether it is here in the United States, Europe, Asia, South America, or somewhere else. With a comprehensive global screening plan in place, companies can mitigate risks and take advantage of the benefits of increased diversity, including differing skills, creativity, and ideas in the workplace.
