If your company runs background checks for employment, you know the rules are complex and ever-changing. So, what does your organization need to know to stay up to date? Here are the top background screening trends to be mindful of in the modern workplace.
Background Checks for Gig Workers
A 2018 NPR/Marist poll found that one in five American jobs is held by a worker under contract. And while many businesses run pre-employment screening on regular employees, they skip this step when hiring freelancers or independent consultants. Sadly, this oversight has put both companies and consumers at greater risk. Notably, ridesharing services such as Uber have faced lawsuits for an alleged “inadequate and careless background checking process.” As a result, businesses are beginning to reconsider their policies. After all, gig workers may not be on the regular payroll, but they still represent the organization’s brand. In fact, according to a benchmark report, the number of employers screening their contingent and extended workforce nearly doubled from 2011 to 2016.
Ban the Box Laws
For years, “Have you ever been convicted of a criminal offense?” was standard on job applications. Unfortunately, if an applicant checked “Yes,” they often found themselves at an immediate disadvantage. To give ex-offenders a better chance at landing a job, the federal Fair Chance Act as well as 36 state and over 150 city and county laws have enforced a “ban the box” policy. These rulings require businesses to remove questions about criminal history from applications and/or to delay a background check for employment. Of course, criminal record searches continue to be an essential part of the hiring process. Nevertheless, it’s important for companies to consider a candidate’s overall value without making an ill-informed, snap decision. This especially holds true if someone’s past mistakes would have little to no impact on the applied-for position.
Although background checks help companies keep customers and employees safe, they also can lead to discrimination against certain groups. For example, Dollar General agreed to pay $6 million to settle a 2019 lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The retail chain was accused of denying employment to African American applicants who failed a background check at a significantly higher rate than white applicants with comparable results. To prevent this type of bias, many organizations are looking to use hiring platforms powered by artificial intelligence. Regrettably, as Ifeoma Ajunwa explains in her New York Times opinion piece, Beware of Automated Hiring, these systems aren’t perfect either. In some cases, AI ends up creating a closed loop system that increases rather than decreases discriminatory hiring practices.
Over the past decade, companies ranging from Amazon to Target have paid out $174 million to settle lawsuits claiming they violated the federal Fair Credit Reporting Act (FCRA). Regardless of the name, the FCRA covers much more than credit checks. It includes a wide variety of information such as work history, criminal records and more. Thus, before an organization can request a background check from a third-party provider, they must inform the potential or current employee in a stand-alone document AND receive this individual’s permission in writing. Despite the fact the Supreme Court recently dismissed several FCRA class action lawsuits under the Spokeo v. Robins ruling, businesses should continue to pay attention to the technicalities of the FCRA. To learn more, check out, What Consent Do I Need to Run A Background Check on A Candidate?
Rethinking Drug Testing
Even though the drug is still illegal at the federal level, a growing number of states and cities have legalized medical and/or recreational marijuana. This presents a problem for organizations that include drug testing as part of their pre-employment and/or continuous screening process. Should a candidate be denied employment, or an employee fired, if they test positive for marijuana? An increasing number of laws are saying “No.” On January 20, 2020, Nevada became the first state to ban most pre-employment pot tests. The New York City Council passed similar legislation that took effect in May 2020. These new laws reflect changing background screening trends in which marijuana is treated similar to alcohol.
Salary History Bans
As part of a comprehensive background check for employment, many businesses run employment verification. Employment verification confirms a candidate’s work history. It usually includes dates of employment, job titles, professional responsibilities, salary information and reasons for termination. This can be useful for employers, because they want to make sure people joining their team have the right credentials. But lamentably, the salary history information portion has been problematic. Organizations often base their compensation packages on an employee’s past pay. And this in turn, compounds the persistent pay gap between men and women and among ethnic groups. Numerous lawsuits filed by the EEOC claim this practice violates the Equal Pay Act (EPA) of 1963 and Title VII of the Civil Rights Act of 1964. To date, fifteen states and numerous cities have enacted salary history question bans. Consequently, companies should familiarize themselves with these evolving laws before requesting a candidate’s salary history.
Social Media Screening
On the surface, social media screening seems like a smart idea. Hiring managers pull up a potential candidate’s social profiles. If something negative comes up, they simply eliminate this person from consideration. However, these seeming harmless decisions can turn into a legal minefield. Why? Under the laws enforced by the EEOC, “it is illegal to discriminate against someone (applicant or employee) because of that person’s race, color, religion, sex, national origin, age, disability or genetic information.” And yet, this is exactly what an informal social media screening can uncover. In addition to federal EEOC and FCRA laws, twenty-five states currently have laws regarding fair use of candidates’ social media. Therefore, experts recommend, companies avoid screening social media accounts directly and instead conduct these types of background checks through an accredited background check agency.
Does Your Company Need Help Staying Up to Date on Background Screening Trends?
Metrodata Services is here to help. As Western New York’s leading background screening company, we’ll help your organization successfully navigate the ever-changing rules and regulations. Plus, you’ll still receive all the information you need to make the best-possible hiring decisions. Learn more about the benefits of working with Metrodata Services today!