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There’s No Competition: The Best Background Screening Compliance Update is Here!

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You’ve probably heard that the FTC recently banned most non-compete agreements. Perhaps you know about the new overtime rules put out by the Department of Labor and that the Equal Employment Opportunity Commission (EEOC) has issued more guidance on the Pregnant Workers Fairness Act. 

But what’s happening in hiring and background screening specifically? There’s a great way to find out—watch our new Keeping Up With Compliance webinar here with Asurint General Counsel Kelly Uebel.

This educational webinar does not provide legal advice—that’s for your own legal counsel to do—but it does deliver a lot of helpful information about the rapidly changing compliance environment surrounding background checks, drug testing, and more. Here are a few highlights to whet your appetite. 

California Gets Even More Confusing

California is a hotbed of Fair Chance-related activity, as various jurisdictions continue to try and overregulate the use of criminal history in hiring decisions. The latest state-level action was the introduction of Senate Bill 1345, which would have enabled candidates to essentially refuse to undergo a background check with no adverse consequences. Fortunately, that measure appears to be going nowhere but there is still much for employers to know about.  

For one, California’s Fair Chance Act was recently amended, so make sure to look at the new language.  

What’s more, Los Angeles County has now joined Los Angeles City and San Francisco City in passing a local Fair Chance ordinance.  

The County’s ordinance goes into effect September 3, 2024 so it’s time to get informed! In many ways, the ordinance is consistent with the existing state law but there are additional provisions that could affect your hiring workflows. For example, employers will not be allowed to consider convictions related to conduct that has been decriminalized when it comes to candidates and background check results. This is clearly pointing to the marijuana issue but could have other impacts. 

What’s more, employers must abide by a requirement to provide written notice related to the criminal background check, along with any other information that may be reviewed. That’s a bit of red tape to keep in mind. 

Some of the biggest changes, however, come in the Adverse Action process, including heightened documentation requirements, a rule stating that all communications must be sent via mail in addition to email, and specific timeframes employers must allow for candidates to dispute background check results.  

Finally, LA County has said that employers cannot pass over a candidate due to a hold-up on a background check. Businesses must wait at least 10 business days and then communicate why further delay would represent an undue burden. Any companies operating in or recruiting from California will likely want to touch base with their background screening provider to ensure speed and reliability of background checks to avoid these complications! 

Need more information about the situation in California? Definitely listen to everything Kelly has to say in the webinar. Additionally, we have this blog post, or you can check out our 50 State Guide or Ban the Box Guide, and the Department of Economic Opportunity has also published a FAQ resource.

EEOC Examines Employer Criminal History Use

Those of us who monitor compliance recognize that the EEOC remains focused on how employers use criminal history in employment decisions. Back in 2019, for example, Dollar General settled a case over the use of criminal records in hiring decisions, and it cost them $6 million. 

Now the EEOC is back at it, suing an employer they say has disproportionately screened out Black, Native American, Native Alaskan, and multiracial applicants via a longstanding criminal background check practice.  

The EEOC alleged that the employer’s practice of denying applicants employment based on their criminal history resulted in discrimination based on race or national origin. Among the “dings” against this employer’s processes, according to the EEOC, are the following: 

  • They didn’t contact applicants who “failed” a criminal background check to request additional information. 
  • No supervisor or company official reviewed the background checks; the decision to screen out an applicant rested solely on the individual ordering the background check.  
  • The company didn’t identify the specific conviction or information that formed the basis of the no-hire decision. 
  • There was no process in place by which candidates could appeal or seek reconsideration of the employment denial.  

Employers may find many takeaways here regarding individualized reviews of criminal history. Employers should also be aware the EEOC’s allegations go far beyond their criminal history guidance issued in 2012, referencing themes from many stringent fair chance laws that exist at the local and state level. Now is a good time to discuss your hiring practices as it relates to criminal history with qualified legal counsel. 

Marijuana Remains on the Agenda

It certainly seems like we’re always talking about marijuana, but the legislative and regulatory landscape simply won’t allow us to look away from this issue. A few things to watch in the political arena: 

  • U.S. Senator Chuck Schumer has reiterated his commitment to getting the Safer Banking Act passed. This would allow legal (under state law) cannabis businesses access to financial services. 
  • A new bill on Capitol Hill would create federal incentives for states and localities to expunge low-level marijuana offenses. The prospects of that proposal are unclear but expungement efforts are in the limelight. 
  • Speaking of which, President Joe Biden has again issued pardons for marijuana offenses, and Massachusetts Governor Maura Healey has announced a first-ever gubernatorial pardon initiative for misdemeanor marijuana possession convictions.  
  • South Carolina has restarted medical marijuana legalization efforts, but there’s not much time left in the state legislative session to see it through. 

Additionally, a Connecticut lawsuit hitting on the medical marijuana issue is worth reviewing in detail. Kelly does so on the webinar (we’ll link it again for convenience), and we also have a blog laying out the details.

The quick version: the courts found in the employer’s favor for terminating an employee who used medical marijuana for seizures. Connecticut law does not require employers to accommodate medical marijuana use while at the workplace, during working hours. If you are seeking insights on the “bright lines” around medical marijuana and the workplace, this case may help.  

And the Hits Keep Coming

Could there really be more? Yes! MDMA could be removed from federal workforce testing guidelines. Iowa’s drug testing law is presenting challenges for employers. Massachusetts has taken up credit checks used for employment purposes. Clean Slate legislative efforts are heating up again. 

It’s a crazy compliance world out there, but Asurint is on the case! From our 50 State Guide to hiring compliance to our Top Trends in 2024 whitepaper, we put out a wealth of resources—including webinars like this one—to help employers, staffing firms, transportation companies, and others keep up with compliance. 

Be sure to bookmark these locations: 

Although all of these compliance materials are free and available to all as part of our Compliance Promise, we would be remiss if we didn’t mention the extra lengths we go to for clients. Work with Asurint and you gain access to Kelly and the rest of our compliance team, while enjoying the confidence a compliance-focused background check provider can supply. 

If you’d like to chat about our services, all you need to do is drop us a line