May 27, 2020
A Worldwide Pandemic Helps Reveal the Truth Behind Working with Small Businesses
By: Christine Cunneen
As the owner of a small business, it is probably not surprising that I have strong feelings about the unique value small businesses bring to the table for their employees, communities, and clients and customers. However, it has never been more apparent to me than over the past few months, as we have faced a global pandemic and economic crisis, the scales of which we have never before experienced.
Many of us have known about, discussed, and experienced the ideals and advantages of working with a small business. Small businesses tend to be more focused on, and driven by, relationships, often resulting in stronger teams and exemplary customer service. They are flexible and nimble, with the capacity to adjust to challenges and changes quickly. They also tend to be more creative, dependable, agile, and passionate about their “why.” Additionally, small businesses generally have strong cultures, with a passion that can only exist through the robust history and story of the owner. Small business proponents would likely agree that this is a fair assessment of these ideals and may offer specific, but sporadic, examples of employee benefits and initiatives, outstanding customer service, customized offerings, and creative solutions. However, the frequency at which we have seen these ideals in action and in varying forms has increased drastically throughout the pandemic.
This was brought to the forefront for me recently through a few notable situations. As COVID-19 impacted the world in ways we could have never anticipated before, we saw it bring out the best in some people and the worst in others. It was crucial for everyone to have the ability to shift quickly—large and small businesses alike, teachers, doctors and nurses, and parents, among others. While we saw some larger corporations struggle with moving to a remote workforce situation, grapple with security issues, and contend with regulatory mandates, smaller businesses did not appear to struggle quite as much. Maybe this seems counterintuitive, as large businesses certainly have more than enough resources. However, if we think about small business ideals, we find that it’s not counterintuitive at all.
With our small business accustomed to being flexible and nimble, we had the tools in place and readily available to make those shifts quickly. For example, as a highly client-driven, service company, we were able to equip our staff to work remotely and implement new security protocols almost instantaneously. We continued to deliver the service to which our clients were familiar throughout the entire transition process and afterwards. We were able to quickly identify and react to challenges as they arose because there was not a barrage of red tape and countless meetings and approvals. There was a quick, but thorough leadership meeting, decisions made, and progress forward.
Additionally, in an industry that is heavily reliant on other companies (for employment verifications), universities (for educational verifications), courts (for criminal checks), laboratories (for drug screenings), and DMVs (for driving records), all of which were closing at a rapid pace, we were able to innovate and find ways to work-around these challenges. Many of these work-arounds were based on long-lasting relationships with vendors and other partners that we had built and maintained throughout the years. In most instances, we were able to complete our services and provide a background or drug screening report to our clients with the fast turnaround time they require. We put forth that extra effort for our clients because they are what it all comes down to for us. They need to ensure a safe workplace and our job is to help them do that, no matter what.
These steps seemed natural to us. Yet, we saw others seemingly hide behind their COVID-19 mask and make excuses, claiming they could not fulfill their obligations for one reason or another. We never looked for excuses, only for solutions to the unique circumstances in which we found ourselves. I have never been more proud of our resiliency and determination as a team.
This is not to say that larger companies can’t get the job done. Of course, they can and do. It is also not to say that you can’t have a great relationship with someone at a larger company. I have plenty of them. What I have realized is that oftentimes, their hands are tied. As such, their inability to help is not their fault at all, but rather a by-product of the layers of red tape and restrictions found within larger organizations. Whatever the reason though, the end results are often the same—generally, less than adequate communications and outcomes.
During the pandemic, I saw the effects of small business ideals in another situation. As most of us are aware, the Paycheck Protection Program, while theoretically beneficial for small businesses, logistically, was a nightmare for most. For the first round, I applied through my bank, which is a large bank and one I have worked with for many years. I submitted my application on time and did everything I was required to do. Yet, when I asked for updates, I barely got a response. And, when I didn’t get the loan, there was no explanation whatsoever. As their long-time customer, I deserved more. For the second round of funding, I was able to work with a local credit union. The entire experience was different. They guided me through each step and kept me informed throughout the process. As if that wasn’t enough, my application was also approved.
This got me thinking that it wasn’t just about getting the money. Why was the process so difficult the first time around? It was the same process, yet the level of care and guidance I received the second time could not compare to the first. Again, not to mention, I actually received the desired end result as well. And then I remembered what I already know—small businesses not only get the job done, but they do so in a way that makes you feel as if you matter. That is exactly what I experienced with the local credit union.
Again, this is nothing new, at least not for me and for countless other small business owners. What has been revealing is the extent to which the ideals of small business have played a part in this pandemic. My hope is that this increased exposure to the benefits of working with small businesses will remind people not to discount us simply because of our size. And instead, to remember that what we offer is far larger than our size and far more valuable.
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Christine Cunneen is the CEO of Hire Image. She is Past Chair of the Professional Background Screening Association (PBSA) and a SHRM member, serving on the advocacy and legislative committees. Cunneen has a BBA in accounting, is a CPA, and has been in the HR industry for 14 years. She is a frequent speaker at events educating employers and other professionals about background screening and is often quoted for her expertise.
May 14, 2020
By: Christine Cunneen
We are experiencing extraordinary times. Never in our lifetimes have we seen the devastating effects of a worldwide pandemic, and I can only hope we never see them again. The increasing unemployment rate has been of particular concern, and one that is prompting the re-opening of our economy. While we are all anxious to get employees working again to provide for themselves and their families, recalling employees will not be like the flipping of a switch. It will be a slow process that is dependent upon many factors, including varying state laws and regulations, social distancing guidelines, and the specific industry involved. For employers, it may also raise concerns about their employees’ activities, having them question if they need to conduct new background screenings before bringing employees back and if employees should be drug tested.
More employees have been furloughed during this time than ever before. As a furlough is an unpaid leave, employees who have been furloughed are not terminated. They were simply not paid, while remaining in employment. Generally, this would not warrant a new background screening or drug screening. However, an employer’s contractual obligations are the guiding principles under these circumstances. According to SHRM, “Employees who are laid off will be maintained on a recall list for six months or until management determines the layoff is permanent, whichever occurs first. Removal from the recall list terminates all job rights the employee may have.” Six months is also the triggering point for notices and other obligations under the federal Worker Adjustment and Retraining Notification Act (WARN) and similar state and local laws. As such, the six-month timeframe could be extended to new hire paperwork and procedures, including background checks. Other than this parameter though, it depends on the policy and contractual terms involved.
Background Screening
To determine whether a furloughed employee will need a new background screening, employers should look at their client agreements regarding background checks and their own internal policies. Specifically, what do the terms call for? What are the employer’s responsibilities? What are the employee’s rights? Do they define “new hire” or state that if an employee is furloughed for a certain amount of time, he or she must have a new screening done? If so, what is that timeframe–60 days; 90 days?
If, under the terms of the contracts and/or policy, it is determined that the employee should have a new background screening completed, the employer then must consider the appropriate disclosure and authorization requirements under the FCRA, just as they would with any other screening. Some background screening policies include an ongoing consent for the term of the employment relationship. If the policy includes this evergreen language, ordering an additional background check is permissible without obtaining a new authorization from the employee. However, if the policy does not contain this language or it is outdated, a new authorization under the FCRA must be obtained prior to conducting the background screening. In some states, like California and Vermont, it is required that employers always get a new authorization, regardless of the language in their policies. Additionally, if something adverse is discovered in the process, the FCRA pre-adverse and adverse action requirements must be followed.
If an employer chooses to conduct a background check on employees returning to work, several factors should be considered. What level of background search is needed? What if there are delays in receiving the results due to court closures? Can the employer supply a batch upload of employees to their vendor and avoid the disclosure and authorization process? What happens if a criminal record is returned? We recommend meeting with your background screening provider and your legal counsel to discuss these factors and more before implementing a re-check of current employees.
Drug Screening
Similar to the background screening process, an employer needs to start with their contracts and drug screening policy to determine what is permissible and/or required. What does their policy say about drug tests? Does it speak to re-testing after the employee has not worked for a certain amount of time? If so, how long is that time period? Additionally, as always, the employer must look at the applicable state and local laws, as some will limit testing unless there is reasonable suspicion to do so.
There are many other factors that should be considered, including the type of industry involved, if safety-sensitive positions and/or the DOT regulations apply, and random testing. For example, if an employee was selected for random testing while on furlough, he or she can be sent immediately upon return. If he or she was removed from the testing pool while on furlough, then a new pre-hire test may be required.
Whether employees need a new background or drug screening aside, this situation presents an opportunity to review policies and procedures to ensure they cover these types of circumstances. While we hope we do not encounter something like this again, if COVID-19 has shown us anything, it’s that we need to be as prepared as possible for the unexpected. If the policy and/or contracts do not address what happens when returning from a furlough and the amount of time of that furlough, revisions should be made.
At Hire Image, we understand the importance not only of background and drug screenings, but maintaining and updating policies for compliance purposes. Please contact us if you need assistance in the review of your background and drug screening processes or policies.
March 12, 2020
As we all watch unprecedented actions and prepare ourselves for the expanding reach of COVID-19 (Coronavirus), we want you to be aware that we are taking every feasible precaution to keep our staff and clients safe, and our business functioning, with as few interruptions as possible.
We have had a Business Disaster/Recovery Plan in place for many years. Our leadership team has recently reviewed this plan in consideration of the current situation. We remain hopeful that it will not have to be implemented; however, if it does, you can rest assured that we are prepared. Our ability to provide the exemplary services to which you are accustomed will continue through internal adjustments, which will not affect you.
We will make risk assessments and corresponding decisions as necessary, according to the plan we have in place, which includes different phases based on our evaluation of risk. At this time, we are operating as usual, with a heightened sense of awareness and additional practices in place to help ensure our maintenance of a healthy office atmosphere.
If mandated by the state or federal government, or by circumstances outside of our control, all of our critical staff can work remotely and securely, with no interruption to our services. We would be able to maintain all critical business operations in this manner for whatever amount of time is necessary.
Unfortunately, there are many situations that are outside of our control in their effects on the background and drug screening processes. Below is a summary of those situations and their potential effects. We will continue to update this information, as it becomes available to us.
- Over the past few days, many higher education institutions have closed, for varying lengths of time. Closures of this magnitude may affect turnaround times for education verifications.
- While we are unaware of any current court closures, it is possible that other government institutions, including courts, may follow the lead of the colleges and universities and close as well. Our court researcher partners are also monitoring this situation. If there are court closures, we will immediately notify affected clients via the home page of our Screening System.
- Although there are currently no impacts to our drug screening and occupational health facilities, we expect there may be delays that arise in this area due to the increased burden on healthcare facilities throughout the world.
- As the effects of this pandemic are being felt in countries around the world, international verifications and searches are also expected to be delayed. Specifically, those in China and Italy.
We are working closely with our local governmental offices and are monitoring developments from several sources, including the Center for Disease Control (CDC) http://www.cdc.gov/.
As with most situations, knowledge and communication are the keys to success. We will continue to post updated information as it becomes available. If you have any questions or require additional information, please do not hesitate to contact us at contact@hireimage.com.
January 29, 2020
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.
November 20, 2019
By: Christine Cunneen
The legislative trend banning salary history questions is clearly not going anywhere. In fact, it is quite the opposite. At times, it seems nearly as if it’s an epidemic spreading throughout the country. Through the passage of various state and local laws, an employer’s ability to inquire about a job applicant’s salary history is diminishing at an increasing rate.
The trend itself is not new, the pace; however, is. Starting over three years ago, with Massachusetts and Philadelphia, salary history bans never impacted as many states as they did in 2019. Today, 14 states (and Puerto Rico) and 8 localities have passed salary history bans for private employers, with an astounding 50% of those passed in 2019 alone. In addition to bans on private employers, 3 states and 10 localities have passed similar legislation for public employers.
Some of the laws passed in 2019 are already in effect, including Alabama, Illinois, Maine, Kansas City (MO), Suffolk County (NY), and Washington. However, some are not effective until 2020 or later:
- New Jersey – January 2020
- New York – January 2020
- Cincinnati (OH) – March 2020
- Toledo (OH) – June 2020
- Colorado – January 2021
Each state’s law has its own nuances, ranging from the size of the employer for which the law is applicable to what exactly can and can’t be asked and when. Some, such as Alabama and New York, specifically prohibit employers from retaliating against an applicant for his or her refusal to disclose their wage history. Others, such as Illinois, also prohibit employers from soliciting salary history information from the applicant’s former employer. Additionally, while Alabama’s law doesn’t ban the question outright, it does prohibit employers from refusing to “interview, hire, promote, or employ” any job applicant who declines to answer.
Other than keeping abreast of the nuances and how they affect employers’ interviewing practices, employers also need to be mindful of the interaction between local and state laws. For example, New York’s state law is more restrictive in terms of affected individuals than its New York City equivalent. As such, employers within localities that have salary history bans need to ensure they are in compliance with both.
Some laws, especially the more recently passed ones, provide some guidance and protections for employers. In Kansas City, employers may ask whether applicants have expectations regarding salary, benefits, and other compensation. Kansas City, as well as Toledo, Ohio, also specifically state that the law does not apply to “voluntary and unprompted” disclosures of salary information by applicants. It is important to note though that even if the disclosure is voluntary, employers still are not permitted to rely on the information in determining the applicant’s compensation.
While salary history bans have been enacted at a rampant pace in 2019, not all states are completely onboard. In fact, both Michigan and Wisconsin took a harsh step in the opposite direction, passing laws prohibiting the passage of salary history bans by local governments. Yet, ironically, Michigan enacted legislation for state employment, while preventing local government from enacting at their own level.
Additionally, this issue is not without controversy. Namely, can salary history bans really rectify the issue at hand? Philadelphia’s ban on salary history was challenged based on a claim of violating the First Amendment’s free speech clause, and a federal district court judge agreed. While the “inquiry” portion of the rule was enjoined, the “reliance” portion remains valid. In his opinion, Judge Mitchell S. Goldberg noted that “it is not in dispute” that a gender pay disparity exists, but that the evidence did not sufficiently demonstrate that Philadelphia’s ban would reduce that disparity. Whether this opinion sets a precedent for challenges in other states will be a topic to watch in 2020.
The policy behind these laws is clear. Relying on past salaries to set current ones assumes the past salary was established fairly to begin with. Oftentimes, though, it wasn’t. As such, policymakers argue that basing current salaries on past potentially biased numbers only perpetuates pay gaps based on gender and other protected classes. The laws are designed to protect applicants from receiving offers for starting salaries that are inextricably linked to lower than average past salaries.
Employers may not like yet another legislative trend prohibiting yet another question during the interview and onboarding processes; however, they do need to begin embracing the change in 2020. In doing so, they may find some unexpected benefits. Every employer knows the right employee in the right position is invaluable. If they could shift their focus from worrying about overpaying to focusing on the value this person can add to their company, it would go a long way in moving forward. Many companies have already begun reviewing their pay policies. This transparency can also build trust with an applicant from the start because the information is clear – they know the salary range of the position and understand it has nothing to do with their prior salaries. This comes from a place of trust, rather than one of contention.
Key Takeaways for Employers:
- Employers in all states should stay informed on the laws that are being passed with regard to salary history and pay equity.
- Employers in any state that has a salary history ban, either statewide or in a locality that affects them, should review and update their hiring practices and job applications to ensure compliance with the laws.
- Employers should review their employment verifications processes and background screening questionnaires to remove the question, if needed.
- Employers should be mindful of remote employees and the various state laws around the country that affect them.
- Employers should shift the discussion to the applicant’s expectations, rather than what he or she earned in the past.
Hire Image understands the intricacies of salary history bans and stays informed on, and compliant with, the ever-increasing changing laws. For up-to-date information on salary history bans and how they may affect your workplace, please visit our Resource Guides or contact us to find out how we can help.
November 14, 2019
For Immediate Release
Media Contact:
Deanna Novak : 888-433-0090
APPROVED PRESS RELEASE
HIRE IMAGE ACHIEVES BACKGROUND SCREENING CREDENTIALING COUNCIL RE-ACCREDITATION
RALEIGH, N.C., NOVEMBER 11, 2019 – The Professional Background Screening Association (PBSA®) Background Screening Credentialing Council (BSCC) announced today that Hire Image LLC has successfully demonstrated continued compliance with the Background Screening Agency Accreditation Program (BSAAP) and is recognized as BSCC-Accredited.
Hire Image CEO, Christine Cunneen noted on the achievement: “I could not be prouder that Hire Image has once again achieved BSCC-Accredited status. Our team works tirelessly to ensure that we remain in compliance with the program’s requirements, not only for the benefit of our clients, but for our company, overall. Through accreditation, we are a stronger background screening provider.”
Each year, U.S. employers, organizations and governmental agencies request millions of consumer reports to assist with critical business decisions involving background screening. Background screening reports, which are categorized as consumer reports, are currently regulated at both the federal and state level.
Since its inception, PBSA has maintained that there is a strong need for a singular, cohesive industry standard and, therefore, created the BSAAP. Governed by a strict professional standard of specified requirements and measurements, the BSAAP is becoming a widely recognized seal of achievement that brings national recognition to background screening organizations (also referred to as Consumer Reporting Agencies). This recognition will stand as the industry “seal,” representing a background screening organization’s commitment to excellence, accountability, high professional standards and continued institutional improvement.
The BSCC oversees the application process and is the governing accreditation body that validates the background screening organizations seeking accreditation meet or exceed a measurable standard of competence. To become accredited, consumer reporting agencies must pass a rigorous onsite audit, conducted by an independent auditing firm, of its policies and procedures as they relate to six critical areas: consumer protection, legal compliance, client education, product standards, service standards, and general business practices.
Any U.S.-based employment screening organization is eligible to apply for accreditation. A copy of the standard, the policies and procedures, and measurements is available at www.thepbsa.org.
About PBSA®
Founded in 2003 as a not-for-profit trade association, the Professional Background Screening Association (PBSA) represents the interests of more than 900 member companies around the world that offer tenant, employment and background screening. PBSA provides relevant programs and training aimed at empowering members to better serve clients and maintain standards of excellence in the background screening industry, and presents a unified voice in the development of national, state and local regulations. For more information, visit www.thepbsa.org.
About Hire Image LLC
Hire Image LLC is a nationally accredited specialist in the field of background screening, drug testing, and verification services. Our priority is to provide accurate and timely background screening reports, using our secure platform, thus enabling clients to make well-informed hiring and/or retention decisions. Our exceptional support system, live phone answering, compliance-centric focus, and customized reporting is tailored specifically to meet client needs. For more information, visit www.hireimage.com.
