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.
As clinics, courts, employers, and schools continue to adapt to the impacts of COVID-19, the restrictions in place similarly continue to create challenges in drug screening, turnaround times, and verifications.
Some collection sites have implemented new policies and procedures for specific tests. For example, Concentra now requires a Respirator Questionnaire with a physician prior to a Respirator Fit Test, which will incur an additional fee. Additionally, some collection sites no longer conduct BAT or PFT tests, limiting clinic options for applicants.
Hours of operation are fluid based on staff availability and sanitizing schedules. Donor passports instruct applicants to call prior to confirm hours and determine if appointments are necessary.
More collection sites now require appointments for drug testing.
Some collection sites (non-Quest/Labcorp sites) are also starting to test for COVID-19.
Court Delays Affecting Turnaround Times
Court closures remain in some jurisdictions with increased COVID-19 cases. Where possible, and with client permission, Hire Image will perform a statewide search, which in many cases, do not have delays.
Some courts have restricted access to records and/or time restrictions to obtain records.
Employer and Education Verifications
Many employers and educational institutions have staff working remotely, and do not have full access to information or are not able to check voicemail as regularly, affecting turnaround times for verifications.
Some employers have closed permanently, and in those instances, no employment verifications are available. Hire Image offers alternatives in these scenarios. Please call our office at 888-433-0090 and ask for the client services department to learn more.
An impostor nurse who lied about her education and work experience to land a series of high-paying health care jobs has been sentenced to 65 months in prison, the Justice Department said Wednesday.
The defendant, identified as Sonja Emery, defrauded employers of more than $2.2 million and evaded more than $697,000 in taxes, Principal Deputy Assistant Attorney General Richard E. Zuckerman of the Justice Department’s Tax Division and U.S. Attorney Matthew J. Schneider for the Eastern District of Michigan announced.
Emery’s actions took place from 2011 to 2018, the Justice Department said.
The First Step Act will reduce sentences and introduce opportunities for early release for people serving time in federal prisons, impacting over 180,000 people. It will encourage inmates to participate in job training and rehabilitation programs and allocate millions of dollars into those programs over the next five years. Inmates also have the ability to earn more credits for good behavior to shorten their prison time and transfer to halfway houses, home confinement, or other supervised releases. Additionally, judges will have more discretion with mandatory sentencing guidelines for people with limited criminal backgrounds.
This law impacts only the federal court system, but we expect criminal justice reformers to use this legislation to push for changes at the local level. According to the US Bureau of Justice Statistics, 87% of US inmates are in held in state facilities and many more are in local jails.
2. Questions Not to Ask when Hiring Continue to rising
There are more jurisdictions, both at the state and local levels, with Ban the Box laws and Salary History Bans than ever before. These laws severely restrict the information a prospective employer has access to in order to make hiring and promotion decisions. 2019 will see more of these laws go into effect, starting with both Connecticut and Hawaii adding Salary History Bans, effective as of January 1, 2019.
The substantial increase in these types of laws, coupled with criminal justice reform that is just starting 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. While the reasoning behind these laws is sound, unfortunately, there is not much in terms of protecting the employers who need to balance their decision-making process in face of these laws with the effective running of their businesses and protection of their customers and property.
3. Marijuana Laws, Including Recreational Marijuana, and Cases on the Rise
Marijuana remains a Schedule I substance under the Controlled Substance Act, which makes it illegal for any reason under federal law. However, more than half of the states have now legalized marijuana for either medical or, the more expansive, recreational use. Each state then has its own nuances to further complicate the matter. This inconsistency among states and, more specifically, between states and the federal government leaves many employers wondering what the changing laws mean for their existing drug screening policies.
2018 saw a Minnesota job applicant who filed a federal class action alleging violation of the Minnesota Human Rights Act because of a company’s refusal to hire marijuana users, including medical marijuana users. And in a federal case in Connecticut, the court ruled that under the Connecticut Palliative Use of Medical Marijuana Act, employees who use the drug after work hours and are not impaired cannot be discriminated against despite the company’s federal contractor status. Delaware also recently ruled that its medical marijuana law did not conflict with the federal Controlled Substances Act and provides its own implied right of action. Cases will be on the rise in 2019 and beyond until some clarity on this issue is found.
Employers will increasingly need to review their job descriptions and perform a safety analysis to determine if accommodations are necessary, based on the applicable laws in their states.
4. Social Media Searches Continue to Rise
Employers and prospective employees are using social media more and more when recruiting or looking for employment, respectively. According to a 2018 survey, 70% of employers are now using social media. This represents a significant increase from the 22% who did so 10 years ago. That increase in percentage, along with the increasing amount of Generation Z entering the workforce demonstrates that the use of social media in the hiring process will continue to increase.
As with most business decisions, for the employer, it is a risk versus reward analysis. The reward is avoiding a potentially bad hire and the tremendous costs associated with such. This is invaluable. However, there are a few risks that employers should keep in mind if they choose this route. Some of those risks include:
The employer may come across protected classes of information and then use that information to make a hiring decision, whether intentionally or unintentionally. Even the appearance of a decision not to hire someone based on a negative impression related to race, gender, religion, disability, or other protected classes could subject them to a discrimination lawsuit.
There is a greater chance of coming across false positives or negatives. People use different names on their social media accounts and at least some information posted is usually incorrect. Employers run the risk of misidentifying someone or missing someone all together because of these inaccuracies.
The employer needs to be careful not to violate the applicant’s right to privacy. It should be noted that this does not apply if the applicant’s social media settings are set to public. That information is open for anyone, including potential future employers, to review. However, if their profile is set to private, the employer cannot try to bypass those settings without risking exposure to potential liability down the road.
The employer needs to evaluate how he or she will use information found on legal issues, including gun control, alcohol use, or legalized drugs. Employers will need to have policies in place to address these areas, and the risks, if any, that apply to their companies.
These concerns should be considered carefully in order to decide if this type of investigation is worth the effort and risk. Companies are encouraged to discuss these searches with their legal counsel and consider outsourcing this process to stay away from potential discrimination claims.
5. Drug Screening Panels and Tests will Continue to be Added in Response to the Country’s Drug Crisis
According to an analysis of over 10 million drug tests, Quest Diagnostics found that the American workforce reached the highest positivity rate for drug use in over a decade. Barry Sample, Senior Director, Science and Technology at Quest said, “[t]his year’s findings are remarkable because they show increased rates of drug positivity for the most common illicit drugs across virtually all drug test specimen types and in all testing populations.”
Poison control centers and hospital emergency rooms have reported increasing instances of abuse and overdose of synthetic (also called designer) drugs, which are not approved by the FDA. Synthetic drugs have constantly changing compounds, so that testing becomes increasingly difficult. As such, it is imperative to stay one step ahead in new drug-test development.
Drug screening panels will need to be added or changed in order to keep up with the increased use of various drugs. Both the Department of Health and Human Services (HHS) Mandatory Guidelines and the Department of Transportation’s rules reflect this trend by clarifying existing drug testing program provisions and adding certain semi-synthetic opioids including hydrocodone, oxycodone, hydromorphone, and oxymorphone, commonly referred to as OxyContin®, Percodan®, Percocet®, Vicodin®, Lortab®, Norco®, Dilaudid®, and Exalgo® to the drug testing panel in response to the increasing concern over opioid abuse in this country.
Other than the new panels, additional drug screening tests are also becoming more prevalent. Specifically, more employers are using oral fluid testing, which is considered better at detecting recent drug use than urine and hair drug tests. According to Quest Diagnostics, “oral fluid testing offers confidential lab-based drug test results. By 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.”
6. Data Security Post-GDPR Remains a Priority
As always, with an increase in online information, comes an increase in concern over the security of that information. Securely maintaining and disposing of records that contain sensitive information will continue to be a top priority for every business owner, especially in light of 2018’s GDPR passage. The GDPR was the first legislation of its kind, tackling threats to data security and specifically addressing a company’s accountability to their customers. These important changes required action by companies and institutions around the world. Organizations will continue to work on compliance in this area, as much of the impact of the regulation will likely be determined with cases that are sure to arise and through the reasoning of the courts in resolving such issues.
The Federal Trade Commission (FTC) is charged with the regulation and oversight of 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.
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 National Association of Background Screeners (NAPBS) Background Screening Credentialing Council (BSCC). The Background Screening Agency Accreditation Program (BSAAP) standard, policies and procedures, and measurements are available at http://www.napbs.com.
7. Access to Criminal Data Information will be Limited
The Clean Slate Act of 2018 was introduced in August with the goal of helping individuals charged with certain crimes rehabilitate by clearing their criminal history. If passed, federal criminal records for marijuana and minor drug-related offenses would automatically be sealed, rather than having to go through the current process for sealing records. As such, on a much larger scale, employers and landlords would not see these records when running background screenings and would have no indication if there are criminal-related red flags.
Some states have already implemented similar legislation. For example, Pennsylvania has expanded the process for sealing state criminal records to include more offenses and has automated the sealing of records, including many convictions over 10 years old, as well as arrests that do not result in conviction within 60 days. Michigan, Colorado, and South Carolina are also expected to introduce similar legislation. Thus, it appears that this movement is now occurring simultaneously at both the federal and state levels.
The legislation thus far relates to older charges or minor drug possession charges. Employers will want to keep an eye to legislation that may further restrict access to criminal record information that may impact the safety of workplaces, properties, customers, employees, and tenants.
8. FCRA Class Action Lawsuits will Continue to Result in Million Dollar Judgments
Recently, the United States District Court for the Southern District of California granted final approval of a $1.2 million class action settlement against Petco Animal Supplies, Inc. Feist v. Petco Animal Supplies, Inc. demonstrates that the trend of class action lawsuits brought against employers for alleged violations under the FCRA is not slowing down.
The lawsuit challenged the company’s form of disclosure for employment background checks, alleging that Petco violated the FCRA by: (1) obtaining consumer reports for employment purposes without the required stand-alone disclosure and (2) not obtaining the required authorization.
The FCRA is intended to protect consumers from either willful or negligent inclusion of inaccurate information in their background check reports. It also regulates the collection, dissemination, and use of consumer information. While it is intended to protect the accuracy and privacy of information used in employment decisions, it is not intended to stop employers from using background screenings. Rather, it mandates that employers follow specific rules with regard to that information and authorizations obtained from the consumer.
This is not the first large FCRA-related settlement we have seen and it is certainly not going to be the last. 2017 saw cases involving Avis paying a $2.7 million settlement in a class action lawsuit and Postmates paying a $2.5 million settlement, among others. This year brought class action lawsuits against McDonalds (pending), a PepsiCo Subsidiary ($1.2 million settlement), and now Petco.
Employers should not let down their guard in 2019 when it comes to FCRA-related lawsuits, as plaintiffs’ attorneys will continue to creatively bring suits to show the “concrete injury” requirement established in Spokeo, Inc. v. Robins, Inc. in 2016. Although most class action lawsuits that wind up in the news involve large, recognizable companies, employers of any size are at risk and should frequently review their forms and processes to ensure that they are in compliance with the FCRA. Employers should also review the laws in the states and cities in which they do business to ensure compliance with local laws.
9. Continuous Criminal Background Screening Becoming More Prevalent – It’s Not Just for On-Demand Workers Anymore
Justifiably, employers will always want to know who is working for them. Not just at hiring, but throughout their employment relationship. A current employee can engage in illegal behavior as much now as he or she could have before they were an employee.
On-demand employers, such as Uber and Lyft, have always used continuous background screening. However, for the most part, it has largely stayed in that sector, other than the healthcare and financial services industries. Now, other industries are starting to see the benefits, especially in light of the “Me Too” Movement of 2018.
The “Me Too” Movement demanded attention from employers in 2018. Employers want to know, among other issues, are they employing people who have a tendency to harass? Beyond harassment, there must be a certain level of trust. Employees also represent a company’s brand and have access to financial and other confidential information. Not having trustworthy employees can lead to loss of productivity, workplace safety, and theft.
With the consideration of continuous background screening, comes the concern over privacy. Balancing these concerns with the pressure to protect other employees, customers, and property is going to be a key priority for employers in 2019 as they determine if background screening will stay at the pre-employment stage or continue beyond.
There is no doubt that businesses have the ability to become international enterprises easier and faster than ever before. This provides for more opportunities, and with more opportunities, comes more risks. One of those risks is with regard to background screening employees in, or from, another country since more companies are recognizing the fact that employees no longer have to be physically present in and can work from anywhere.
Companies are well-aware of the various federal, state, and local laws with which to comply for their background screening needs – the EEOC, FTC, and FCRA, to name just a few. However, dealing with similar laws from other countries is a “foreign concept.” Additionally, not only are there privacy laws to deal with, but cultural nuances that also play a large part in the process.
Companies in 2019 will start to consider these issues and implement strategies and global screening policies to deal with them effectively. Whether or not they have an office in another country is irrelevant because some of their US-based employees may have international backgrounds that need to be checked. Companies should implement comprehensive screening plans that are flexible enough to take into account varying laws, requirements, and cultural differences. With a plan in place, they can mitigate risks and take advantage of the benefits of increased diversity, including differing skills, creativity, and ideas in the workplace.
It is clear from all that is happening in our industry that the year 2019 will be a busy one in the background screening, human resources, and employment law fields. Hire Image will continue to monitor legal and regulatory developments in federal, state, and local jurisdictions as it relates to background and drug screening and share those changes that impact employers.