Background Screening: Legislative Trends to Watch in 2024

February 12th, 2024

By Angela Preston, Associate General Counsel, Corporate Ethics & Compliance

2023 saw several noteworthy regulatory developments affecting the ways employers hire and background screen their candidates. Owing to the sheer variety and complexity of these compliance trends, it can be difficult to monitor and incorporate them (where applicable) into your hiring policies. What should HR and compliance professionals know about these new employment laws and best practices? What are the most impactful compliance trends you should follow to help your organization mitigate risk?

In Sterling’s 2023 compliance webinar in partnership with SHRM: “Hiring and Background Screening Regulations Are Evolving: What You Need to Know to Keep Up,” we pinpointed ways employers can leverage these legislative and regulatory trends in order to design effective hiring and screening programs and processes in 2024.

HR Compliance Topics that Shaped 2023

Adverse Action: Adverse action is a two-step process in which employers must give candidates notice that the results of their background check could have an adverse impact on the decision to hire (or to promote, etc.). Your candidates may review or dispute details found in their background check report before you make a final hiring decision.

When examining your adverse action procedures, take into account state and local laws having similar notice requirements. Employers should also make sure to incorporate current EEOC guidance that calls for an individualized assessment when using criminal history information, bearing in mind that some states and local jurisdictions also mandate individualized assessment.

Drug Testing Regulations: Concerning marijuana laws and federal pardons: 

  • Federal law: Marijuana remains a controlled Schedule I substance per federal law.
  • State law: Many states are continuing to legalize (and in some cases, decriminalize) marijuana for medical and adult recreational uses. 

The multitude of these state laws now poses legal issues for employers, especially given that more states are enacting employment protections preventing employers from testing for (or discriminating against) off-duty drug use. Employers with drug testing programs are well-advised to review policies with their legal counsel while closely monitoring both state and local laws wherever employees are located.

Industrial and Regional Regulations: 

When hiring across different industries, employers should also take into account special regulatory requirements for hiring in their industry, and how regulations might impact hiring. For example, safety-sensitive positions may require drug and alcohol testing, or other clinical medial tests. 

In light of those requirements, employers may want to tailor their screening program based on the requirements of the position. Similarly, work funded through government contracts may have special requirements for background screening, or may require specific items such as fingerprint checks or a more extensive criminal scope. Work closely with your counsel to ensure your program is compliant and meets the needs of your workforce.

Leveraging AI and Automation Tools in Hiring Decisions

Federal laws and initiatives focused on AI (artificial intelligence) and automated employment decisions tools (AEDTs) are gaining traction as the government addresses this technology’s potential for bias and discrimination when making hiring decisions. We expect that states will join New York City in passing laws which will regulate the use of AI in hiring. The EEOC and FTC have already weighed in on this topic, and the EEOC has emphasized that AI and new technologies are subject to existing anti-discrimination laws. The EEOC has issued its guidance in the form of a technical assistance document.

Employers can reduce their risk of claims related to use of AI by having clear AI policies and by thoroughly vetting any AI tools used in hiring for potential bias. 

Clean Slate Laws

“Clean slate” is another trending employment law policy model to watch in 2024. Clean slate laws are designed to expand employment opportunities for first-time criminal offenders by sealing or removing specific types of criminal records from public record. Where these laws apply at the state and local level, employers are not allowed access to certain (formerly-available) record types during a criminal background check. Examples include Colorado SB 99 (becoming effective July 2024) and Delaware SB 111 (effective August 2024).

As clean slate laws have become more popular, US employers are reexamining their existing hiring policies to determine if (and how) clean slate will impact how they make hiring decisions. Be sure to regularly review and update your background check procedures and policies in order to account for all new and relevant state and local legislation.​ Also consider modifying your existing practices involving criminal history inquiries in situations where the law permits candidates to state that they don’t have a criminal record.

Fair Chance Legislation

“Fair chance” laws are a third emerging area of employment law. Together with clean slate laws, fair chance legislation aims to eliminate the stigma associated with having a criminal record. While clean slate laws provide opportunities to seal or remove criminal history from the public record, fair chance laws regulate employers’ use of criminal history. 

We’re seeing several evolving requirements in state and local laws: 

  • More advanced EEOC-style individualized assessments presenting different and/or additional factors which employers must consider.
  • Required use of specific forms/notices.
  • Adverse action notice content and timing triggers, which are additional and/or different from the federal Fair Credit Reporting Act (FCRA) adverse action requirements.
  • Changes in the timing of when a background screening may occur. 

In a recent example of fair chance legislation, per California’s modification of the 2018 Fair Chance Act, California employers must now perform preliminary assessments of criminal history information with their candidates before they may start the adverse action process. Californian employers are also now required to provide candidates with additional opportunities to respond and provide their own documentation (or other mitigating information) before employers may make their final hiring decision. Compliance professionals should stay updated on this and other examples of fair chance legislation where applicable to their background screening processes.

Summing Up

US employers and HR compliance professionals can anticipate and research these critical compliance trends to help inform their compliance and hiring programs in 2024. While it can be challenging to keep updated with new and evolving laws and regulations, HR professionals can place added trust in their hiring programs by working with an experienced background screening provider.

This originally appeared on BenefitsPro: 

Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.

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