Author Archives: Criminal Background Check

Criminality of Marijuana Related Offenses will Impact Employment Screening

As Marijuana laws in the USA from State to State keep changing making medical and even recreational use legal it is changing pre-employment background screening. It is useless testing new potential hires for the drug if in their State it is legal to use it. Marijuana criminality remains a hot topic especially since Congress took up the matter of de-scheduling the drug as Schedule 1 narcotic, a level of criminality that is shared with methamphetamine and heroin. With Congress looking at de-scheduling marijuana, combined with additional states voting to legalize recreational marijuana, the use of the drug and hiring will surely continue to be hot button items for HR Departments and hiring managers.

In 2020 the outgoing 116th Congress took up the issue of de-scheduling marijuana as a Schedule 1 drug in the House of Representatives and with the change in leadership the topic will most certainly return to the agenda of the 117th Congress. With control of Congress in different hands the conversation about de-scheduling marijuana should force all hiring managers and HR Departments to immediately plan for such a change, and a best practice remains to work with a well-qualified third-party pre-employment agency in order to remain compliant with existing and potential law.

Across the country voters are approving new legislation allowing for the lawful use of recreational marijuana. Often time’s steps are taken, at the state level, to expunge previous marijuana-related convictions.

Starting on January 1, 2021 Illinois will expunge previous marijuana convictions.

From the Chicago Tribune on January 5, 2021:

The first set of cases, dating from Jan. 1, 2013 to June 25, 2019, were to be expunged by Jan. 1. Cases dating from 2000 through 2012 must be expunged by Jan. 1, 2023. Offenses before 2000 must be expunged by the start of 2025, under the state law. In all, Will County has more than 11,000 cases eligible for automatic expungement under state law, Glasgow said.

Wiping records clear of a low-level drug offense can help open doors for jobs and other opportunities, attorneys said. chicagotribune.com/marijuana/ct-sta-will-county-marijuana-expungement-st-0106-20210105-hb5lpyotfbfp7nrhcppgzmrkc4-story.html

A federal level change to decriminalize the use and possession of marijuana would greatly reduce the potential of confusion with the use of criminal history reports in employment screening. It is counterproductive to convict people in this country of marijuana related offenses when most of the country doesn’t think it is a crime at all to use the drug for medical or recreational purposes. It is a futile effort that will only clutter our correctional facilities, cost us a lot of money and remove people from the work force further hurting our economy.

By some jurisdictions in this country expunging marijuana related criminal background records they are freeing these individuals from the stigma of having a criminal record which will enable them to get a fresh start and a job and start contributing positively to the USA and its economy.

To read more about this subject read recent press release: Marijuana May be the Big Issue in Pre Employment Background Screening in 2021; Opines CriminalBackgroundRecords.com

Montgomery County Ban-the-Box Law Updates Highlights Challenges to Hiring Managers

Ban-the-Box laws across the country and across many jurisdictions can be very different from each other and can cause great confusion to hiring managers trying to be compliant. These such laws can vary drastically from one another creating a big challenge for HR departments and hiring managers trying to be consistent in their hiring practices.

A recent modification in Montgomery County’s Ban-the-Box law highlights how laws governing the use of criminal history records can change quickly and, potentially, cause confusion to hiring managers and HR departments. Any jurisdiction, city, county or state can create a Ban-the-Box law and each law can be significantly different from other similar laws and, additionally, create confusion regarding the legal use of Criminal History reports as a part of pre-employment background screening.

Montgomery County recently upgraded an existing Ban-the-Box law, one that is more restrictive than those in nearby and neighboring cities and counties as well as the state of Maryland, thereby creating the potential for significant confusion with hiring managers and HR departments. The action by Montgomery County highlights the challenges hiring and HR departments face daily with overlapping law and suggests the use of a well-qualified third-party pre-employment background screening agency remains a best practice.

Recently, Montgomery County, in Maryland, updated an existing Ban-the-Box law. The new law creates greater restrictions and control regarding the use of criminal history questions on employment applications as well as the use of Criminal History records as a part of pre-employment background screening.

From ConnectNewspapers.com on November 19, 2020:

Last week, the Montgomery County Council unanimously enacted Bill 35-20, Human Rights and Civil Liberties – Fair Criminal Record Screening Standards – Amendments, which aims to help prevent workplace discrimination by prohibiting background checks prior to the extension of a conditional offer of employment and preventing inquiries into certain types of arrests and convictions. Councilmember Will Jawando is the lead sponsor of this legislation.

Bill 35-20 expands the scope of the law by prohibiting background checks until after a conditional job offer has been extended. The bill also prevents inquiries about certain crimes altogether. In addition, it redefines “employer” to include any employer in the County, except certain types of employers such as those that provide services to minors or vulnerable adults. connectionnewspapers.com/news/2020/nov/19/montgomery-county-council-enacts-ban-box-bill/

Any change to Ban-the-Box laws or any law related to pre-employment background screening should force a Hiring Manager and/or HR department to take immediate note. In light of the drastic differences between these laws and the overlapping of such laws at different levels of the government it is clear that more consistency is needed to avoid confusion and non-compliance.

At this point in time it is imperative that businesses and organizations understand the intricacies of ban-the-box laws that affect them and a best approach is to partner with a well-qualified employment screening company which can assist them in becoming and remaining compliant and aware of such changes in law.

To read more about this subject read recent press release: Change in Ban-the-Box Law Highlight Challenges for Hiring Managers & HR Depts.; Opines CriminalBackgroundRecords.com

New Guidance from California Demonstrates Potential Change in use of Criminal Records in the Hiring Process

California gets more explicit about the 2018 Fair Chance Act that aimed to help those with previous criminal background records get a better chance at getting a job. Recent amendments went into effect in October that will have a big impact on most employers in the State regarding the fair and proper use of criminal background checks in the employment screening process.

Recently California’s Department of Fair Employment and Housing (DFEH) issued a new guidance clarifying the states Fair Chance Act, as well as indicating a willingness to enforce updated policy. The action in California that highlights the potential of significant change to laws governing the use of Criminal History Records, and Hiring Managers and HR Departments across the country should take immediate note. Laws governing pre-employment background screening face potential change and a best practice remains to work with a well-qualified third-party pre-employment background screening agency in order to remain compliant with existing and potential law.

The new guidance issued by DFEH is designed to clarify protections for workers with a criminal background record.

From JDSupra.com on October 15, 2020:

Since its implementation on January 1, 2018, The Fair Chance Act has been a source of questions for California employers. Also referred to as “banning the box,” Government Code section 12952 makes it illegal for most employers in California to ask about the criminal record of job applicants before making a conditional job offer.

The Department of Fair Employment and Housing (“DFEH”) recently amended the regulations implementing the law, with an effective date of October 1, 2020 jdsupra.com/legalnews/dfeh-updates-ban-the-box-regulations-16361/

Modification and clarification guidance, such as the one issues in California by DFEH, can be common across the country thus creating an ongoing change to law. Hiring managers are challenged with remaining compliant with existing law. As ban-the-box and similar laws in big States like California take effect, the whole country should be evaluating the efficacy of such laws and whether or not they want to participate in such a movement.

To read more about this subject read recent press release: California’s New Guidance Highlights Potential Change Affecting Hiring and Criminal Records

Employment Screening Still Necessary During Covid-19

With every change to laws governing the use of criminal history reports during the Covid-19 pandemic hiring managers and HR departments should ensure continued compliance by working with a well-qualified third-party pre-employment background screening agency.

In 1998 Hawaii enacted the first ban-the-box legislation in the United States, becoming the example for all legislation to follow. On September 15, 2020 Hawaii further enforced their anti-discrimination policies by updating existing ban-the-box law.

From Lexology.com on September 16, 2020:

Hawaii has long had a law limiting the discretion that employers have to consider older criminal conviction records in making employment decisions. Effective September 15, 2020, SB 2193 prevents most private sector employers from considering conviction records within the last 10 years, but only convictions within seven years for felony convictions, and five years for misdemeanor convictions, excluding periods of incarceration.1 Hawaii shortened the 10-year lookback period “to reduce unnecessary employment discrimination against individuals with old and relatively minor conviction records, in furtherance of economic self-sufficiency, and to reduce crime and recidivism rates.” lexology.com/library/detail.aspx?g=066c4e32-6f76-4227-ae05-e11cb50b9380

The amendment to Hawaii’s ban-the-box law shows how laws can change and with change hiring managers and HR departments should be sure that pre-employment background screening policies are current and compliant. Hawaii’s change exemplifies why vetting policies must be continuously reviewed. Even during these times employment screening is still necessary and imperative in the USA.

To read more about this subject read recent press release: Criminal History Records Need Not Hold One Back

Background Screening Still Necessary During Covid-19

As the Covid pandemic continues all over the world in the USA it remains very important that employers still employ a thorough vetting process to help weed out malfeasant individuals during the hiring process. Across the country companies continue to hire new employees during the Covid pandemic and pre-employment background screening should be a part of the hiring process. Now, more than ever, hiring managers and HR departments must remain diligent in hiring practices and pre-employment background screening agencies should be utilized to provide legally compliant, accurate, and up-to-date information.

During the current economic upheaval related to the Covid pandemic, it is important to note that the laws governing pre-employment background screening have not been put on moratorium or relaxed. All laws that govern the use of public records (such as criminal background records) as related to background screening, remain fully intact. The laws, policies and regulations governing pre-employment background screening have not changed during the pandemic.

From Lexology.com (Aug. 20, 20):

Don’t ignore federal and state background check laws while waiting for the dust to settle on this pandemic! Here is what employers need to know about these requirements.

Generally speaking, before an employer may obtain a background check (also called a “consumer report”) from a third-party background check provider (also called a “consumer reporting agency”), the employer must make a clear and conspicuous written disclosure to the individual that a background check may be done. In fact, the document must consist “solely” of the disclosure… The candidate or employee must also provide written consent for the employer to obtain a background check report. Different requirements exist for “investigative consumer reports” (those based on interviews of the individual’s friends, neighbors and associates), and for employers regulated by the Department of Transportation (depending on their hiring practices). lexology.com/library/detail.aspx?g=159821ee-3fa1-4344-89c1-ebd125262953

It is important to note that employers still need written consent from a potential hire before conducting background checks on the individual. This letter is called an employee release form and if investigative consumer reports are to be had as well there also needs to be a clear explanation of these kinds of reports being conducted as well. In addition an employer also has to be cognizant of other laws regarding hiring practices like ban-the-box laws that may apply to them and may limit when in the hiring process certain background checks like criminal background checks can be conducted. All in all it is still a best practice for employers to utilize a professional background screening company to provide background check reports in a compliant and legal manner.

To read more about this subject read recent press release: During Covid-19 Background Screening Should Continue Without Change; States CriminalBackgroundRecords.com

Ban-the-Box Laws Need to be Reviewed and Must Evolve

For over 20 years Ban-the-Box legislation has been sweeping across the USA. However, over time these such laws need to be reviewed and must evolve in order to ensure they are achieving what they are meant for. This of course is to help previously incarcerated and/or those with a criminal background record have a better chance at getting employed. Not all ban-the-box laws are the same and not enough research has been done to prove that these laws help out those with criminal records at all.

As of this publication more than 35 states now have a form of Ban-the-Box legislation. And many cities and counties have acted as well. Every day there is potential for new ban-the-box legislation and hiring managers/HR departments should strive to stay current with all changes to law.

Form NELP.org (July 1, 2019)

Nationwide, 35 states and over 150 cities and counties have adopted what is widely known as “ban the box” so that employers consider a job candidate’s qualifications first—without the stigma of a conviction or arrest record. … these initiatives provide applicants a fair chance at employment by removing the conviction history question from job applications and delaying background checks until later in the hiring process. nelp.org/publication/ban-the-box-fair-chance-hiring-state-and-local-guide/

What many hiring managers and HR Departments may not realize is that Ban-the-Box laws have a tendency to change or evolve. Over time flaws or shortcomings can be discovered and changes need to be made to ensure the law is as effective as possible.

It is also incumbent on the government to conduct research on whether or not ban-the-box laws are actually helping previously incarcerated or those with a criminal background record get a better chance at getting employed. Without such statistics there will be no way to know if such laws are helping minorities and those with a criminal record, and some suggest it may actually be worse for such individuals. There would be no point for having these laws if they are making it worse for minorities and those with a criminal record to find gainful employment.

The use of public records, such as criminal history reports, is strictly regulated and fines and penalties for the misuse or inappropriate use of such records can be significant. Staying compliant with law is critical for all companies and organizations.

Laws governing pre-employment background screening change on a frequent basis and these changes can impact a business. Working with a well-qualified third-party pre-employment background screening agency, in order to remain current with existing and pending law, remains a best practice.

As the use of criminal reports in the hiring process is under scrutiny due to ban-ban-box legislation it is compulsory that employers follow such laws and in order to that employers need to be aware of these laws and when it is appropriate in the vetting process to conduct a criminal background check.

Read more about this subject read recent press release: Working with Background Screening Agencies Remains Best Practice as Ban-the-Box Laws Continue to Change & Evolve

Even Amongst COVID19 Don’t forget About Ban-the-Box

With COVID-19 consuming the news and most media outlets its time to visit where we are with the Ban-the-Box movement midway through the year. When it comes to vetting potential employees for positions within companies and organizations it is important to know if Ban-the-Box laws affects how you can use criminal report information in the hiring process.

In the world of pre-employment background screening new Ban-the-Box laws dominated headlines, but with the outbreak of Covid 19, Ban-the-Box has taken a bit of a backseat. But laws continue to change anyway.

In 1998 Hawaii became the first state to ban-the-box, a law that essentially “bans” the question of criminal history on an employment application. Since that first law multiple states and municipalities have followed suit. With every passing year ban-the-box laws are enacted with the goal of assisting those with criminal background records in attaining gainful employment.

Ban-the-box laws are often complex and may cover every detail.

In recent months several jurisdictions have moved to close loopholes in respective ban-the-box laws or modify the law in general in order to cover a broader cross section of individuals seeking employment.

In Minnesota, one of the first states to follow Hawaii with ban-the-box legislation, is working on updating their law and close a loophole that still required the criminal history on some state boards and commissions.

From MinnPost.com on June 16, 2020:

In recent years, even as Minnesota was considered a pioneer in ending the practice of asking job seekers about their criminal histories, it somehow was still posing the question to applicants for one class of job: appointments to state boards and commissions. minnpost.com/state-government/2020/06/special-session-gives-lawmakers-second-shot-at-eliminating-minnesotas-ban-the-box-loophole/

As Minnesota aims to achieve an all-encompassing Ban-the-Box law other States and Jurisdictions are working on their own versions of the law. Also in Congress Representative David Trone is working on a Ban-the-Box bill that would be a Federal law effecting the whole country. Amongst all this commotion with such laws in this country and all the possible changes that could happen it is still a best bet for employers to partner with a professional employment screening agency to help ensure their employee vetting process is compliant with all relevant law effecting the hiring process and when if ever in that process they can use a person’s criminal background record as part of their decision making process.

To read more about this subject read recent press release: Mid-Year Check In on Ban-the-Box

First Phase Brings Many Back to Work with COVID19

Phase one of the return to normalcy has begun and each state and county seemingly have differing guidance and regulations regarding the return work. At this time employers and employees need to be cautious in their efforts of opening up their businesses and conducting proper behavior while at work which could include wearing a mask and other preventive methods. Additionally on several levels, employers need to take special care when employees return to the workplace.

Many returning to work are excited to get out of the house but still have to stay within the guidelines of social distancing and wearing the appropriate PPE (Personal Protective Equipment).

Pre-employment background screening has many challenges without a pandemic or stay-at-home work orders. While it may appear that there are no jobs available in the workplace many employers are beginning to ramp back up. For the near future companies will have to work under stringent guidelines in order to keep employees safe. The same holds true during the hiring process.

Typical job interviews are managed face-to-face. But with COVID related safety protocols in place the hiring process has changed. Job interviews are now handled via Zoom and/or exclusively by phone. For many companies across the country the on-boarding process is managed the same way.

Pre-employment background screening has faced its own challenges. During the initial phases of the shutdown many county courts were closed and criminal court records were not updated on a regular basis. Many state and county employees worked from their homes during this time and did not always have the ability to update court records. And, more importantly, many courts were closed entirely, or worked on a limited basis.

As county courts begin to reopen there will be a deluge of delayed court proceedings. Records will be updated but certainly there will be delays in the process. In order to maintain best practices hiring managers and HR departments should work with a well-qualified third-party pre-employment background screening agency in order to remain up to date with court closures, as well as maintaining access to those critical court documents required to fully vet a candidate.

A greater challenge for an employer may be with the return to the physical workplace.

From JDSupra.com (May 20, 20):

Despite the best of intentions to comply with the myriad of laws, orders and recommendations and to “do right” by employees while dealing with the current pandemic and recession, employers remain vulnerable to a whole host of potential COVID-19-related claims. Ever-changing guidance and return-to-work orders complicate the issues. Keeping abreast of the actual and potential legal theories being raised is key to assessing potential COVID-19-related litigation risk. jdsupra.com/legalnews/top-five-covid-19-litigation-risks-for-34262/

As the country begins to open up new sectors of the economy that were hit the hardest by the pandemic they must do so with great care and caution as a resurgence in COVID19 cases could put us right back to where we were. Administering proper hiring practices through the use of an employment screening company is still a best practice.

Additionally, to further add to the complexity of the situation employers may be faced with whistleblowers, as related to COVID19 and the return to work policies.

To read more about this subject read recent press release found at: COVID-19 and Return to Work

Access to Court Records due to COVID-19 Creates Big Problem for Employment Screening

COVID-19 has caused some courts in the country to temporarily close or make access to some court records even for court researchers very difficult to obtain.

Despite so many layoffs positions are still available and need to be filled. Many of these positions are with at-risk populations and, subsequently, should still require a vigorous pre-employment background check conducted by a well-qualified third-party background screening agency. Even still employment screening has become challenging.

From SHRM post on April 7, 2020:

Employment background screening has been disrupted as employers adapt to the COVID-19 pandemic. In some cases, screenings have been put on hold because courthouses and schools are closed, blocking access to records. In addition, uncertainty about deteriorating business conditions has caused some employers to pull back on hiring. shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/employment-screening-challenges-due-covid19-coronavirus.aspx

Despite challenges, at-risk populations need to be protected. Caregivers, technicians, helpers, and related roles need to be thoroughly vetted in order to protect at-risk individuals. But, admittedly, screening can be a challenge in a lockdown environment.

Many of the workers that managed county court records have been furloughed or work remotely. And with Courts shut down in many parts of the country record maintenance becomes difficult. Modern electronic records may not be the most current and court researchers may not have access to hand pulled records.

Fortunately criminal background checks can still be performed using statewide criminal repositories for most employment screening requirements. However a back log of court record access primarily used to perform county criminal checks by court researchers still pose a big problem for some job types that require these types of background checks. As always it is best for employers in the USA to partner with a professional employment screening company to help them navigate through these uncharted times.

To read more about this subject read recent press release found at: Hiring Challenges During Times of COVID 19

Coronavirus Pandemic and Pre-Employment Background Screening

The Equal Employment Opportunity Commission (EEOC) recently released guidance for employers in the USA concerning existing employees and new hires relating to the Coronavirus Pandemic (COVID-19)… And any time a significant document regarding pre-employment background screening or managing employees in general, such as the recent guidance from the EEOC, companies should take immediate notice and work with a well-qualified third-party pre-employment background screening agency in order to remain compliant with law.

With the new Guidance companies now have procedures as how to manage a business in the midst of a pandemic. The EEOC is clear in how to manage potential illness and information related to such under the law and ADA.

From AkinGump.com (Apr. 01, 2020):

The EEOC’s guidance clarifies how, consistent with federal disability discrimination laws, employers may (i) screen new hires and employees for COVID-19, including by using temperature checks; (ii) protect the workforce by delaying start dates for new hires and removing employees from the workplace who present a risk of transmitting the virus to others; (iii) notify coworkers who may have been exposed to the virus due to an employee testing positive; and (iv) ensure that employees returning to work are fit to do so through certification by a health care provider. akingump.com/en/news-insights/eeoc-issues-updated-guidance-on-covid-19-and-federal-disability-discrimination-laws.html

Additionally COVID 19 is considered a “direct threat” as considered under the ADA.

From HKLaw.com (Mar. 25, 2020):

The ADA generally prohibits employers from discriminating against applicants or employees on the basis of disability. However, the ADA allows employers to exclude individuals from the workplace if they pose a “direct threat” to the health or safety of themselves or other employees. A direct threat is defined as someone who poses a “substantial risk” to the health or safety of other employees in the workplace that cannot be mitigated or eliminated by reasonable accommodation.

On March 21, 2020, the EEOC declared that the COVID-19 pandemic meets the definition of a direct threat. https://www.hklaw.com/en/insights/publications/2020/03/eeoc-updates-published-guidance-for-covid-19-pandemic-preparedness

It is important that companies and organizations pay close attention to new rules and guidance on how to handle their employees during this crisis. They must remain vigilant in ensuring the people within their organizations and the people they come in contact through won’t be further spreading COVID-19.

Additionally when it comes to new hires the rules have not really changed as new hires must be treated fairly and equally throughout the vetting and hiring process, and must follow all guidance provided by the EEOC. With the COVID 19 outbreak those rules have been slightly altered but the overarching principle of equality and non-discrimination remain firm.

To read more about this subject read the recent press release: COVID19 and the EEOC Guidance