1. COVID-19 Vaccination Records & Testing Impact on the Workplace

Due to the ongoing concerns over the COVID-19 pandemic and new measures to encourage vaccination, employers will be faced with new recordkeeping requirements. In addition to the mandates on health care workers and federal contractors, the Department of Labor’s Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) requiring all employers with 100+ employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce negative test results on at least a weekly basis before coming to work.

As 2022 progresses, employers are cautioned to ensure they are following all federal, state, and local laws, as there will likely be many applicants and employees who will not willingly adhere to the new mandates. Employers will also be tasked with correctly storing COVID-19 vaccination records, including treating them like all medical information, which is kept confidential and stored separately from the employee’s personnel files under the Americans with Disabilities Act (ADA).

Additionally, with no registry to verify vaccination records, employers will be faced with the challenges of these new recordkeeping requirements, without any way to check the accuracy of those records.

 

2. Staffing Shortage Impact on Background Screening

We are in the midst of what is now known as The Great Resignation. Each month, millions of employees are resigning, leaving employers scrambling to find the right replacements quickly and easily. Not only will employers need background screening results faster than ever to onboard quickly, but they will need them at a time when the government is severely limiting the information available to employers and when the justice system is not holding people accountable (as well as increasingly easing convictions). As such, employers are put at an even further disadvantage in finding the right person.

Employers are finding that a criminal background check is no longer enough to truly know who they are hiring. In 2022, more employers will opt for more comprehensive background check packages, including Social Media Checks, News and Publications, Employment Verifications, and Professional References to learn as much information about their applicants as possible.

 

3. An Increase in Social Media Searches

It’s no surprise that in today’s world, most applicants (of all demographics) use social media in some form. However, it may be a surprise to learn that social media can provide a wealth of information about an applicant, offering employers a glimpse of the applicant not available on a resume … or anywhere else.

In 2022, more employers will increase their social media searches to assist them in understanding who they are hiring. And employers will set their own criteria to identify any derogatory information. For example, employers can choose to look for one or any combination of the following: threats or acts of violence; sexually explicit material; racist, sexist, or discriminatory behavior; potentially illegal activity; and negative content related to employment.

 

4. Mergers, Acquisitions, and Public Offerings Affecting the Background Screening Industry

With the fluctuating economy, furloughs, layoffs, resignations, and increasingly restrictive laws, more background screening companies, third party providers, and software companies have merged, been acquired, or have gone public. Whatever the reason, it is becoming apparent that some important aspects are getting lost in the shuffle, namely, the customer experience, which is often inadvertently overlooked during mergers and acquisitions. When a company goes through a major structural transition, the focus tends to be on that transition and little else. However, over time, this lack of attention on customers will negatively impact the company.

Background and drug screening are people-driven industries, requiring constant client attention. Going forward, employers should remain diligent with their providers, ensuring they are receiving the level of care required for their increasingly complex needs.

 

5. Court Access Issues Impact Screening Process

Limiting access to criminal records (or completely sealing them) is nothing new, and we are expecting it not only to continue in 2022, but to increase. There has been a disturbing trend limiting access to information typically used in preparing background check reports. This isn’t just about criminal convictions or giving people a second chance. In fact, in some instances, any personal identifying information (PII) is removed, making it difficult to determine if the record even belongs to the applicant involved in the first place. This is in addition to the numerous states and localities now automatically sealing convictions under Clean Slate Acts.

We expect industry groups to remain active in advocating for proper access to public records, especially concerning the impacts on the employer’s rightful use of them. California and Michigan will remain a challenge in 2022, as there is more to do to educate the judiciary on the impact of redacting critical information, such as dates of birth. In 2022, employers will have serious concerns that the candidate who was reported as “clear” may still have a criminal background. Employers should pay careful attention to additional legislation that may further restrict access to criminal record information, potentially impacting the safety of workplaces, properties, customers, employees, and tenants.

 

6. Patchwork of State and Local Laws Will Continue to Challenge Employers

The enactment of new laws limiting information that can be obtained by employers or available courses of action for them, such as Ban the Box and Salary History, continues throughout the country and will not likely decrease in 2022.

New (or amended) Ban the Box Laws that went into effect in 2021 include: St. Louis, Missouri (effective January 1, 2021) and Maine (effective October 18, 2021). Philadelphia and New York City also amended their Ban the Box laws, expanding protections to current employees. Further, Illinois added additional requirements, effective March 23, 2021, for Pre-Adverse and Adverse Action letters for employers who may choose not to hire an applicant based on his or her criminal record history. For Salary History Bans, effective October 1, 2021, Nevada employers are now prohibited from inquiring into an applicant’s salary history. Additionally, Connecticut amended its discrimination law, effective October 1, 2021, in not permitting employers to obtain a date of graduation on an initial application, and not allowing questions regarding the applicant’s age or date of birth.

Some jurisdictions, like New York City, also now have a bifurcation process as it relates to hiring. For example, New York City employers are now required to consider all other background information before making a conditional offer, and to defer any criminal background checks until after such a conditional offer is made. Montgomery County, Maryland similarly expanded the scope of its Ban the Box law, prohibiting background checks until after a conditional offer has been extended (effective February 19, 2021).

It is expected that we will see similar laws enacted throughout the country in 2022. And unfortunately, we will also likely continue to see the larger implications of making hiring decisions without having complete information about the individual involved play out in tragic events.

 

7. Privacy Laws Increasingly Affect Background Screening

With the pandemic quickly accelerating our reliance on technology and digital platforms, data privacy continues to be at the forefront of many employers’ minds. However, there has not been a significant federal response to the issue. As such, states are taking privacy into their own hands. In 2021, 23 states introduced privacy legislation, with Virginia and Colorado already becoming law. These bills are in addition to what we saw last year in California with Proposition 24, the California Privacy Rights Act (CPRS), which will further expand the California Consumer Privacy Act (CCPA), effective January 1, 2023.

While many of the proposed bills this year did not advance, others are still pending. Employers should monitor the various state developments to ensure their own privacy policies and procedures remain in compliance throughout 2022. 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.

 

8. Applicants Have Higher Expectations Regarding the Candidate Experience

There has been a considerable shift this year in the mindsets of millions of candidates and employees resulting from the larger effects of the pandemic and how they view their jobs, family time, flexibility, and appreciation. Both job candidates and current employees want something more fulfilling. They have higher expectations not only with their workplaces, but with the entire recruiting process. They expect a fast process, mobile availability, customization, and technology-driven solutions. Simply, they want to work for companies that value them, starting from the hiring process.

Employers should look at this as an opportunity in 2022. A well-developed, clearly communicated, and expedient hiring process, including background checks, is a strong competitive advantage in this overly saturated job market. There is no doubt that we are at a time of instant gratification. This is what candidates are accustomed to and expecting, and this is what employers must provide. The key is making the hiring and onboarding processes a critical component of the overall candidate/employee experience to meet those expectations from the outset.

 

9. Continuous Monitoring Becomes More Commonplace

More companies have realized the importance of monitoring employees for illegal behavior, especially in light of our increasingly remote workforces, and the importance of monitoring driving history for those driving company vehicles. Under the influence or impaired driving and other reckless driving reports, criminal activity, and civil issues can (and do) occur not just prior to employment, but throughout it.

Continuous compliance precedes continuous monitoring. As such, 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.

In 2022, employers must remain cognizant that their employees, whether working from the office or at home, represent their brands, and have a direct correlation to their reputations. Additionally, employees may have access to financial and other confidential information, raising privacy and security concerns. Continuous monitoring helps ensure that employers have trustworthy employees. And having trustworthy employees means increased productivity and workplace safety, and a decreased likelihood of theft or harm to others.

 

10. The Evolution and Confusion Related to Drug Screening Continues

In 2021, we saw Philadelphia join New York City and Nevada with the implementation of a ban on pre-employment testing for marijuana (Philadelphia’s law became effective on January 1, 2022). Additionally, while marijuana remains a Schedule I substance under the Controlled Substance Act (making it illegal for any reason under federal law), to date, there are nearly 40 states that have legalized marijuana for medical purposes and nearly 20 for recreational purposes. And of course, each of these laws also have their own nuances.

With more remote workers (some in states that differ from the employer’s state) and the ambiguity surrounding what is legal and where, uncertainty regarding marijuana will continue. Further, issues such as accommodating marijuana use, drug-free workplaces, and the possibility of being sued for terminating an employee for a drug test that is positive for marijuana will plague employers in 2022.

 

Hire Image strives to be your trusted background screening resource and partner in 2022 and beyond. If you have any questions about these predictions or your own background screening processes, please reach out at contact@hireimage.com.