1. Background Screening Challenges Continue as a Result of COVID-19
Various government, business, and education closures have been a necessary, but concerning, effect of the pandemic. These closures have had broad implications across many different industries, including background screening. And there is little doubt these implications will continue into 2021.
Court closures remain in jurisdictions with increased COVID-19 cases. Some courts have restricted access to records or have placed time restrictions under which to obtain records. While there are workarounds in some instances, these closures and delays often impact the timing of criminal searches.
Employment and education verifications are also affected in that many employers and educational institutions have staff working remotely, who do not have information as readily available as they previously had. Additionally, some employers have closed permanently, resulting in an inability to verify past employment. Similar to criminal searches, there may be alternatives in these scenarios.
Employers have also struggled with various aspects of transitioning to remote workforces, such as with Form I-9 document inspections. Early last year, Immigrations and Customs Enforcement (ICE) began allowing for flexibility with the Form I-9 physical presence requirements for employers with remote employees, provided that once the employees are physically present, there is in-person re-verifications within three business days. This flexibility extends through January 31, 2021, but is expected to continue.
2. COVID-19 Impacts to Drug Screening will Continue
COVID-19 will continue to have tremendous impacts on how, when, and where drug screenings are performed. Many people are reluctant to go for drug testing at a facility that also conducts COVID-19 testing in fear of contracting the virus. As such, employers must now address and alleviate concerns of applicants and employees refusing to go for routine drug testing, according to the company’s drug free workplace policy.
Additionally, many collection sites have now implemented new policies and procedures for specific tests. For example, some collection sites no longer conduct Breath Alcohol Tests (BAT) or Pulmonary Function Tests (PFT), limiting options for applicants. Hours of operation continue to be fluid based on staff availability and sanitizing schedules, and more collection sites now require appointments for drug testing.
With the pandemic reaching new heights, this trend will continue into 2021. Employers should review and rewrite their drug policies and protocols, as needed, and determine alternative solutions to their drug testing needs.
One possible solution that will likely see an increase in demand is remote oral fluid testing. Testing kits can be sent to applicants at their homes allowing them to provide a sample, which can be monitored through teleconferencing options. The samples are then sent back to the testing laboratories, eliminating the need for in-person testing in many situations.
3. Court Access Issues will Evolve After COVID 19 Shutdowns
The trend of limiting access to criminal records has exploded throughout the country over the past couple of years. And, with unemployment at record highs due to the pandemic, this is a trend that is expected to continue into 2021.
Legislation limits access to some records and seals others. In some instances, any personal identifying information, or PII, is removed, making it difficult to determine if the record belongs to the applicant involved. In other instances, courts have refused to share records at all. Additionally, many states and localities are now automatically sealing convictions under Clean Slate Acts. In fact, courts in Pennsylvania (the first state to pass a Clean Slate Act) have until June 27th of this year to seal 30 million criminal records. Other states, including Utah, California, and Michigan also have similar legislation. Los Angeles and Chicago have also cleared thousands of records resulting from certain marijuana convictions.
With these limitations, employers will continue to be concerned that the candidate who was reported as “clear” may still have a criminal background. To date, the legislation relates to older charges and minor drug possession charges. However, with a high unemployment rate and initiatives to get people back to work, employers will want to keep apprised of legislation that may further restrict access to criminal record information, potentially impacting the safety of workplaces, properties, customers, employees, and tenants.
4. Patchwork of State and Local Laws will Continue to Challenge Employers
While the pandemic slowed down much of our lives, it did not slow down the enactment of new laws limiting information that can be obtained by employers or available courses of action for them. Ban the Box and Salary History Bans continued to be enacted in 2020.
New (or amended) Ban the Box Laws included: St. Louis, Missouri (effective January 1, 2021); Virginia (marijuana possession only – effective July 1, 2020); and Hawaii (amended to provide additional protections to ex-offenders – effective September 15, 2020). For Salary History Bans, Maryland was the only state to pass legislation in 2020 (effective October 1, 2020).
These laws go beyond banning a box or not being able to inquire into prior salaries. There are larger implications to making hiring decisions without having complete information about the individual involved. It is expected that similar laws will be enacted throughout the country in 2021.
5. Election Results Impact Background Screening
Marijuana took center stage at the 2020 election. Mississippi passed a medical marijuana law (effective July 1, 2021), while Arizona (effective date to be determined), New Jersey (effective January 1, 2021), and Montana (partially effective October 1, 2021) each passed recreational marijuana laws. South Dakota passed both medical and recreational laws (effective July 1, 2021).
We do not see this trend of increased marijuana laws going anywhere. In fact, according to a Gallup poll in November of 2020, 68% of Americans are in favor of legalizing marijuana (up by 10% since 2015 and 20% since 2010).
Additionally, many election overtones point to increased laws over the coming year regarding criminal records, drug testing, and other areas for employers. There may also be changes on the consumer reporting side, as per the recent nomination, the Consumer Financial Protection Bureau (CFPB) will soon fall under the leadership of an aggressive consumer advocate.
6. Privacy Laws Increasingly Affect Background Screening
COVID-19 has affected, and will continue to affect, privacy and security matters across all industries. As employees return to work, and employers face increased challenges to provide safe work environments, there will inevitably be new privacy concerns. While innovative technologies (symptom screening, contact tracing, etc.) to support re-opening initiatives can be helpful, employers must ensure they remain in compliance with all applicable laws, including, where appropriate, the notice and consent requirements under the Fair Credit Reporting Act, the California Consumer Privacy Act (CCPA), and European Union’s General Data Protection Regulation (GDPR).
COVID-19 has also prompted more expansive privacy and security measures. For example, employers in California should keep apprised of recently enacted Proposition 24, the California Privacy Rights Act (CPRS), which will further expand the CCPA. While this expansion becomes effective on January 1, 2022, employers should monitor developments to ensure their own privacy policies and procedures remain in compliance. Additionally, there is now federal prioritization of data security and privacy issues, with the introduction of the Consumer Data Privacy and Security Act of 2020 (CDPSA). If passed this year or in the following years, it will provide consumers with expansive rights over personal information and even broader privacy and security compliance obligations for employers.
2020 also saw the dismantling of the EU-US Privacy Shield, a framework for regulating transatlantic exchanges of personal data for commercial purposes between the European Union and the United States, by the Court of Justice of the European Union. Privacy Shield was found invalid due to its inadequacy to provide sufficient protections in the United States for personal data of EU origin. In November of 2020, the European Data Protection Board (EDPB) adopted recommendations to help ensure compliance with EU levels of protection of personal data.
With all of these developments, employers should stay aware of privacy and security concerns. Further, 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.
7. Companies Begin More Rigorous Screening Practices for Third-Party Vendors and Contractors
With companies of all sizes struggling to stay in operations due to the pandemic, many will choose to outsource various functions of their business. In doing so, 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. Cases involving delivery companies or others contracted by another company where a tragedy unfolds, and where the contracting company is held responsible, have become far too common throughout the country.
Going forward, companies will not only need to assess their own screening criteria, but also that of their vendors and contractors. Ensuring the same criteria is applied, whether it is for an employee, vendor, or independent contractor is crucial for consistency in keeping the company, its employees, and its customers safe.
8. Applicants Have Higher Expectations Regarding the Candidate Experience
In recent years, applicants have expressed a desire to work for companies that value them and their time throughout the hiring process, and this will continue in 2021. To them, it sets the expectations for the company’s culture and work environment. Each year, there is new technology to speed things up and provide for nearly instant gratification in many situations. This ease of information is what today’s candidates are accustomed to, and they expect the same as it relates to background checks and interviews.
In 2021, employers should consider what processes and technology are available to streamline the hiring experience, including mobile-friendly apps and increased communications. Employers must also pay close attention to their online reputation management, as many applicants choose to express their negative views of the employer’s hiring process on social media platforms.
9. Continuous Monitoring Becomes More Commonplace
Particularly in light of the increased remote workforces around the country and world, more companies are realizing the importance of monitoring employees for indications of illegal behavior, including DUIs or other reckless driving reports. Employees represent a company’s brand, and now, often are needed to do so from home. Additionally, employees could have access to financial and other confidential information, raising privacy and security concerns. Not having trustworthy employees can lead to loss of productivity, workplace safety, and theft.
Continuous monitoring mandates continuous compliance. Employers must ensure that they have the employees’ consent to continue to conduct background screenings throughout their employ. Policies should reflect clearly when the screenings will occur and why, and apply equally to all employees.
10. The Evolution and Confusion Related to Drug Screening Continues
As predicted, 2020 shaped up to be one of the biggest years for marijuana-policy reform. Last year saw the implementation of Nevada and New York City’s bans on pre-employment testing for marijuana. And the November election demonstrated the overall increasing acceptance of marijuana legalization. However, while there may be some consensus on broad legalization, there is anything but harmony with regard to testing, accommodations, and CBD use.
The use of CBD products is now fairly widespread. CBD, while not technically marijuana, could still lead to a positive marijuana drug test. As such, more applicants and employees may fail a drug test because of an unregulated substance.
Additionally, marijuana remains a Schedule I substance under the Controlled Substance Act, making it illegal for any reason under federal law. But more than half the states have legalized it in some form, with their own nuances. Employers are also continuing to struggle with questions, such as: 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?
The uncertainty surrounding marijuana’s status as legal or not, CBD use, and an employer’s obligation to provide accommodations almost guarantees additional legislation and caselaw in 2021 to determine the parameters of the future of drug screening.
