Criminals found in the workplace, sweeping changes in legislation regarding medical marijuana, high-profile cases of resume fraud, and increased number of class action lawsuits against businesses for non-compliance with employment laws — it’s no wonder so many employers realized the importance of professional background screening in 2014.
What’s ahead for 2015? Employers and human resource professionals from coast to coast can expect background screening, drug testing and verification of resumes to not only remain high on the list of assessment tools in the workplace, but to evolve to stay relevant with our changing culture.
Here are Hire Image’s top 10 background screening predictions for 2015:
1. ‘Ban the Box’ laws that do more than just ‘ban the box’ will put employers at risk for lawsuits
‘Ban the box’ refers to the removal of the check box which asks some variation of, ‘Have you ever been convicted of a crime?’ from employment applications. Many employers have already done this, especially since the EEOC suggested doing so when they released their 2012 Guidance on the Use of Arrest and Conviction records. The EEOC guidance is not a law or regulation and the question is not prohibited on an initial application for federal purposes, however, EEOC attorneys may view asking the questions as discriminatory. The coming year will see more counties, cities, and states are passing ban the box laws and thus far, not all laws at county, city or state levels are alike. Some require additional information to be provided during the adverse action process along with differing timelines for notification. Other rules require employers to do an individualized assessment and ensure that the items resulting in job disqualification are job-related. Businesses will need to pay close attention to the progression of these laws, not just in their state, but also in the county or city in which their business operates. As regulations change, county and state employment laws will differ, complicating the struggle of employers to stay in compliance.
2. FCRA-related class action lawsuits will continue
There was a surge in class action lawsuits for alleged employer violations of Fair Credit Reporting Act (FCRA) rules and regulations in 2014. Because there is no monetary cap on these lawsuit settlements, we expect the number of claims and lawsuits to grow as plaintiffs’ attorneys see an opportunity to score large payouts. Both employers and background screening companies will need to be diligent in staying up-to-date on the latest court rulings and compliance information to avoid being part of this trend. See our October 15, 2014 blog post for details about these types of lawsuits, including information on how employers can keep their HR practices FCRA compliant.
3. The use of social media searches in the hiring process will increase
Social media channels enable individuals to voice their opinions and showcase their personalities. These forums also offer employers the opportunity to learn more about their applicants and employees. Many companies will add social media investigations to their background screening process to find out more about who they hire. However, beware of potential pitfalls when performing social media searches, which are generally governed by the same FCRA rules that regulate other types of background checks. There are discrimination, consent, privacy, legal, and sometimes moral issues that can arise from using social media to screen applicants or monitor employees – not to mention the inability to verify the accuracy of the information found. In 2014, LinkedIn was faced with a related FCRA lawsuit. More social media searches will be outsourced to professional screening agencies that are experts in this specialized type of search to help companies stay in compliance.
4. Drug screening tools and tactics will evolve to keep up with a changing drug culture
The legalization of marijuana for recreational and medicinal purposes will continue at the state level. As marijuana remains an illicit drug at the federal level, employers will continue to be at risk for potential lawsuits. To date, the courts have sided with employers maintaining a drug free workplace, but we predict there could be rulings in favor of employees in the near future. Employers will need to continually update their workplace drug screening policies based upon future court decisions and differing state laws. [See our January 21, 2015 blog post for updates and details on recent lawsuits surrounding marijuana laws.] Evolving along with marijuana laws will be new and improved drug tests. A new marijuana breathalyzer is being developed to detect not only the level of THC in the system but also the length of time since most recent ingestion. Drug screening labs are now experimenting with new ways to test for synthetic drugs such as synthetic marijuana and bath salts. Government regulations will continuously be established to keep up with the design of new synthetic drugs, some of which currently avoid detection but certainly put users in an impaired state and those around them at risk.
5. More advocacy will be needed to educate lawmakers on background screening issues
In the upcoming year, the National Association for Professional Background Screeners (NAPBS) will take an active role in working with legislators to amend or create laws to ensure that employers following state requirements for licensing or employment are not then faced with an EEOC lawsuit. In addition, we will see language incorporated into mandatory fingerprint bills to allow employers the option of continuing to work with their professional background screening companies who not only provide more robust consumer protections, but also provide more comprehensive and efficient searches for employers. With scrutiny surrounding the reliability of the FBI fingerprint database, legislators must be informed about the importance of professional background checks. Also advocating for one standard ‘ban the box’ law to supersede the patchwork of local laws will be a priority.
6. NAPBS certification and accreditation will become a requirement when working with background screening companies
NAPBS certification and accreditation will become the industry standard for reputable background screening companies. As lawmakers consider the reliability of fingerprinting versus background screenings, NAPBS certification and accreditation will play a role in determining the credibility of background screening services provided. State legislation has already been introduced calling for background checks by NAPBS accredited companies as alternatives to fingerprints and we expect this to continue. NAPBS certification and accreditation standards boast a slew of requirements designed to ensure that the national standard for background screening best practices is adhered to. From expertise with FCRA requirements, detailed processes about data security and verification accuracy to ethical requirements regarding truth in advertising and unauthorized browsing, clauses in the NAPBS audit criteria are designed to ensure background screening companies are held to the highest standard.
7. Resume fraud will increase
With “diploma mills” and companies specifically created to verify falsified resume details a reality, employers will need to pay close attention to the employment applications they receive. In a competitive job market, applicants are more likely to resort to fabricating work experience, certifications and degrees. Failure to properly investigate applicants could result in hiring under-qualified candidates whose character is, at the least, questionable. Education and employment verifications will be vital tools in weeding out fraudulent applicants.
8. New ways of streamlining the background screening processes will emerge
A streamlined background screening process benefits everyone involved. The integration of background screening platforms with Human Resource Information Systems (HRIS) and stand-alone Applicant Tracking Systems (ATS) will continue to expand. As compliance requirements continually evolve due to federal, state and local legislative changes and court interpretations in the background screening area, these technology platforms must quickly update systems. They will be expected to provide employers with the assurance they have integrated the tools needed to meet the latest background screening compliance obligations. Programs allowing order entry by applicants through tablets and mobile devices will become commonplace and make the background screening process more transparent for applicants. With less paper to shuffle and less room for order entry errors the process will become more compliant and efficient.
9. Data protection and security will become more prevalent
With cyberattacks on the rise, personally identifiable information (PII) transferred and communicated over networks will remain more susceptible to hackers, despite increased security measures. The struggle to create a truly secure method to protect PII will continue. Legislation in this area is expected and will have an impact on all employers. NAPBS accreditation requirements for information and data security are stringent and precise, and will become more so as technology is enhanced – ensuring NAPBS accredited background screening companies will have the most up-to-date security policies and procedures in place.
10. Safer workplaces, families and communities will be linked to background screenings, drug tests, and verifications
It’s no secret that better hiring decisions can be made thanks to thorough, comprehensive background checks. Uncovering an applicant’s criminal and fraudulent behavior before hiring him or her is one way to avoid future risks. Background screening will be used to protect kids from predatory activity, to prevent violent criminals masquerading as in-home workers from getting through your front door, and to prevent DUI repeat offenders from getting behind the wheel of a school bus. Verifications will flush out would-be CEOs who lie and scam their way to the top and drug testing will continue to save employers from lawsuits filed by factory employees who injure themselves on the job while high on drugs.
Knowledge is power and professional background screening, drug testing and employment and education verifications are tools that should be part of every company’s operational handbook. Whether hiring someone new or continuing to screen existing employees, employers should not compromise their rights to a safe and productive workplace in 2015 and beyond.