Pre-Employment Screening hits a hurdle with the removal of personally identifiable information like individuals dates of birth from public records that will make it extremely difficult to match criminal background records with the person who committed the offense.

Redaction of personal identifiers will create challenges for hiring managers and HR departments and suggests a best practice remains to work with a well-qualified third-party pre-employment background screening agency to remain up-to-date with changes in background screening and applicant vetting.

Pulling public records from County Courthouses has received a blow as more states are limiting the use of identifiers, such as DOB or CDL numbers, on public records, and this action will have serious implications for vetting applicants.

Recently, in Michigan, the use of identifiers has become limited by law.

From PBSA.org, a leading industry group for Background Screening, in June 2021 (No specific date provided):

Effective July 1, 2021 Michigan courts will redact date of birth (DOB) from their public records available through courthouses. This change is the result of Michigan’s ADM File No. 2017-28 and 2020-26 adopted by the Supreme Court that the State Court Administrative Office has interpreted to require clerks not to use or provide DOB in searches. This means that only one identifier (Name) will be available on court records. This change will impact all criminal background checks in Michigan until further notice. ^{thepbsa.org/government-relations/michigan-dob-redaction-information/}

Additional courts across the country are beginning to follow the same process highlighted by Michigan’s action, and could create significant challenges to those vetting employment applications.

In California a court challenge ruled that the use of identifiers should be limited.

From NBCPalmSprings.com on June 28, 2021:

All of Us or None argued that permitting the use of dates of birth and driver license numbers to initiate a search was a violation of Rule 2.507 and sections of the Government Code. ^{nbcpalmsprings.com/2021/06/28/fees-now-in-effect-to-view-superior-court-criminal-records-online/}

Michigan is not the only state to go in this direction. Other states, such as California, have varying degrees of redaction of identifiers. While public record searches will continue, the use of a single identifier (first, middle, last name) will push HR departments and hiring managers to work very closely with a third-party pre-employment background screening agency in order to properly match identities of candidates to public records.

Additionally the Professional Background Screening Association or PBSA is currently lobbying the State of Michigan to not go through with their plans as it would be a disaster for the court record retrieval process and could prevent many employers and landlords from finding out about their applicant’s criminal past that could cause tremendous risks to the safety of their employees and tenants.

To read more about this subject read recent press release found at: DOB and Other Identifiers Removed from Public Records, Potentially Slowing the Background Screening Process; Opines CriminalBackgroundRecords.com

It is clear that at this point in time ban-the-box laws are not going away as new related laws get passed and existing laws get amended. Hiring managers and employers need to review new and existing ban-the-box laws that fall within their jurisdiction and such laws certainly will affect employment screening policies going forward.

Pennsylvania recently updated Ban the Box laws, further restricting employers use of public records, and represents just one of many challenges employers face in maintaining current and compliant hiring policies. Working with a well-qualified third-party pre-employment background agency remains a best practice in staying current with rapidly changing Ban the Box legislation.

Changes to current employment and Ban the Box laws in Pennsylvania highlight how these laws can evolve and potentially create confusion for hiring managers and HR Departments.

From the National Law Review on April 9, 2021:

Changes to Philadelphia law will further restrict employers’ use and reliance on applicant, current employee, and independent contractor background information and affect the employee application and employee management process. ^{natlawreview.com/article/philadelphia-enacts-key-changes-to-ban-box-credit-screening-ordinances}

One of the more interesting changes to the law relates to current employees.

Again, from the National Law Review on April 9, 2021:

Bill No. 200479 amends the FCRSS to make it applicable not only to the application or transfer process, but to the use of any current employee criminal histories. The law’s restrictions and procedural requirements now apply also to current employees, as well as applicants in Philadelphia. Moreover, independent contractors and gig workers are afforded the same protections as full-time or part-time employees or applicants. ^ibid.

Even though some Ban the Box laws can be challenged based on legality and/or jurisdiction it is important to note their legitimacy and for employers it is important to abide by these laws when it comes to the use of criminal background checks in the hiring process. When and where an employer or hiring manager can perform a criminal background record check in the employment screening process must be understood and partnering with a professional employment screening company is always a best practice.

To read more about this subject read recent press release found at: Change to Ban the Box Laws Can Lead to Confusion for Hiring Managers and HR Departments

After about six years from passing their first ban-the-box law, NYC has updated its Fair Chance Act and the changes will take affect this summer.

When Ban-the-Box laws came into existence 20 plus years ago they were generally enacted at a statewide level. Over time cities took up the call for legislation regarding the use of criminal history reports, specific to their use during the pre-employment screening process and as related to the question of a criminal history on employment applications.

Larger cities enacted ban-the-box laws and, over time, continued to update and expand the scope of this type of legislation. One example of this evolution with a ban-the-box law is New York City.

The city’s initial law came into existence in 2015 but recently took action to improve the law, and these changes take effect in July 2021.

From the National Law Review’s website on January 29, 2021:

On January 10, 2021, amendments to the New York City Fair Chance Act (“FCA”) – New York City’s “ban-the-box” law – were passed into law. The amended FCA will significantly expand employment protections for applicants and employees with criminal background records, including convictions, charges, and arrests. ^{natlawreview.com/article/new-york-city-expands-its-ban-box-law}

One of the key areas on the newly expanded law regards the question of “non-pending arrests” or “criminal accusations.”

From JDSupra.com on January 12, 2021:

It is unlawful to either make any inquiry about non-pending arrests or criminal accusations, adjournments in contemplation of dismissal, youthful offender adjudications or sealed offenses, when such an inquiry would violate the New York State Human Rights Law. Currently, the FCA prohibits denying employment on these bases, but does not prohibit inquiries about such information. ^{jdsupra.com/legalnews/2021-employment-law-spotlight-new-york-2307634/}

Every jurisdiction can have a law that is unique and finely nuanced. Without a federal law governing the use of criminal history confusion can be created with different laws and cause considerable concern for hiring managers and HR Departments. At this point in time it is very important to understand all the Local, State and Federal laws concerning the use of public records such as criminal records in the hiring process and when and where such records can be utilized.

To read more about this subject read the recent CBR press release: NYC Example of Ban-the-Box Law Evolution at a Municipal Level

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

New ban-the-box legislation in Waterloo, Iowa that is scheduled to take effect July 1st 2020 is taking heavy heat from the business groups that oppose the ordinance. The new law would prevent private employers from asking about criminal background history on job applications. The new law would be even stricter than other ban-the-box laws that have been adopted elsewhere in the country. The new Waterloo Iowa law has seen tremendous backlash from people arguing that the ordinance is unlawful when compared to any other regulation of hiring practices under state and federal law.

Iowa’s “Ban-the-Box” legislation is set to take effect on July 1, 2020, but recent challenges may delay the date.

From SouthernMinn.com (Jan. 06, 20):

A state business group is asking the court to strike down a city ordinance that would prevent private employers from inquiring about criminal backgrounds on job applications.

On Jan. 2, the Iowa Association of Business and Industry filed for an injunction in Black Hawk County District Court to head off Waterloo’s “ban the box” rule, which is scheduled to begin in July. ^{southernminn.com/around_the_web/news/article_ed3f883c-d3ec-5b3f-bd4c-2538d1921147.html}

Challenges to law are common and only add to the confusion of when or whether a law will be implemented. Ban-the-Box legislation is designed to assist in eliminating potential discrimination and allow greater access for all groups, especially recently incarcerated individuals.

A best practice for all hiring managers is to work with a well-qualified third-party pre-employment background screening agency in order to remain up-to-date with all laws that could potentially affect their industry.

While the city is yet to comment on the potential litigation, the claim suggests that the Ban-the-Box law violates state constitution.

From SouthernMinn.com (Jan. 06, 20):

According to Iowa ABI’s petition, the group warned city officials before the vote the ordinance would violate a 2017 state law that ABI championed prohibiting cities from adopting ordinances that “exceed or conflict with the requirements of federal or state law … relating to hiring practices.” ^ibid

Ban-the-box laws have been implemented across the country, the most recent being the Fair Chance Act initiated at the federal level enacted as part of a funding bill. Employers need to understand that laws, such as ban-the-box legislation, can often be challenged in court and without paying strict attention may be unaware of the status of laws governing their industry. That is why it is important to work with an employment screening agency which can help in assisting with compliance to new and existing law.

To read more about this subject read recent press release: Ban-the-Box Legislation in Waterloo, Iowa Faces Challenges

Utilizing thorough background checks to protect at-risk populations should have already been the norm but it wasn’t. Recently several jurisdictions in the country are addressing this issue and are making new State and Federal regulations especially with daycare. Conducting criminal background checks on individuals that will have access to at-risk populations like children and the elderly is one big step in achieving safety for the vulnerable portion of the population in the USA.

The benefits of employment screening and background screening in general is protecting at-risk populations, such as the elderly and children, and everyone in-between. Caregivers of this portion of the population must be thoroughly vetted before given access to these people, it is a sure way to help avoid malfeasant individuals from abusing the at-risk population in this country.

Background screening when conducted in a fair and equitable manner, one that is nondiscriminatory and lawful, can be a great risk mitigation tool. Background screening can verify information on resumes, provide details through the use of public records, and help hiring managers, for paid and unpaid positions, have greater information to make important decisions. Some places in this country are already addressing this issue:

In Buffalo, New York a caregiver facility is faced with the implementation of new regulations designed to further protect at-risk populations.

From WKBW.com (Oct. 28, 19):

New state and federal regulations are now in place for daycares around New York State, that bring daycare providers up to a more rigorous standard, protecting your children from potential predators. ^{wkbw.com/news/i-team/new-background-checks-implemented-to-protect-kids-at-daycare}

Enhancing background screening requirements is always a good idea, especially when protecting at-risk populations. Thorough background checks, ones that include a full array of screening reports like criminal history reports, can only improve risk management, and, further, mitigate that risk.

At the Buffalo facility one worker appears to agree with the direction law has taken.

From WKWB.com (Oct. 28, 19):

“It should have been implemented from the beginning,” … “There’s no reason that we weren’t checking a complete background history from state to state…but the benefit of it is, that we will have a complete background history and it’s important.” ^ibid

However, policies are only as good as how they are being fulfilled. Failure to follow policy can open the door to malfeasance and discrimination.

In Roselle, Illinois a football coach was removed once his past came to light. And it appears that policy was not followed and the coach was allowed to work with and amongst children.

From WGNTV.com (Nov. 07, 19):

The head football coach at Lake Park High School was removed from his coaching duties earlier this week after an investigation found a convicted sex offender was allowed to help coach the team.

Lake Park High School District 108 administration launched an investigation after it came to light that a volunteer varsity football coach was convicted of sexually abusing a minor in 1992. ^{wgntv.com/2019/11/07/if-we-dont-condemn-it-we-condone-it-victim-of-volunteer-coachs-sexual-abuse-in-the-90s-speaks-out/}

It is instances like this that remind everyone of how important it is to properly vet all individuals paid or not paid that are given access to at-risk populations like children. To help thwart malfeasance and to help prevent past offenders from striking again a thorough background screening program is certainly a best practice.

To read more about this subject read recent press release: Caregivers & Criminal History; Challenges to Protecting At-Risk Populations

The recent example that ride-hail company Lyft employed as part of their prevention policy to help thwart the possibility of their driver’s committing offenses such as sexual assault may become a best practice for other companies in the USA. This practice is called “Continuous Background Checking”, a process in which an employer performs ongoing criminal background checks on their employees, part-time employees and even independent contractors in this Gig Economy in an ongoing way say once a year or less to ensure that if new offenses occur they will become aware of them hopefully in time to mitigate risk.

The rideshare company Lyft has recently faced legal challenges regarding sexual assault. Inadequate background checks are cited as one of the core problems regarding Lyft’s hiring practices.

From CBSNews.com (Sep 05, 19):

Fourteen women who said they were raped or sexually assaulted by Lyft drivers are suing the ride-hail company. The suit claims Lyft mishandled their complaints against drivers, in some cases allowing the drivers to continue working following the alleged assaults.

In the lawsuit, filed Wednesday in San Francisco, the anonymous women claim the app does not do enough to stop drivers from assaulting passengers. They allege Lyft fails to adequately perform background checks, does not communicate with victims after they accuse drivers of sexual assault, and does not have adequate technology in place to protect passengers. ^{cbsnews.com/news/lyft-lawsuit-14-women-file-lawsuit-after-drivers-allegedly-sexually-assaulted-them/}

As a result of all these sexual assault claims Lyft started using continuous background checks as part of their prevention policy and this may prove advantageous. Continuous background checks are a growing trend in employment background screening.

From BusinessInsider.com (Sep 10, 19):

Tuesday’s announcements add to previous safety features that have been part of Lyft’s app for some time, like continuous criminal background checks that flag any drivers who may turn up in databases following their initial hiring, and location sharing. ^{businessinsider.com/lyft-drivers-required-to-take-safety-training-after-attacks-lawsuit-2019-9}

Continuous background checks are increasing in popularity and could be an important addition to any companies’ background screening policy. In the light that there were fourteen women so said they were either raped or sexually assaulted by Lyft drivers it is important for companies and organizations doing continuous background checks that they include a 50 State Sex Offender Registry check each time they perform a background check.

In addition to a complete criminal background check one that includes a sex offender check it is also very advantageous to perform a Social Security Number Search with Address History Trace so the employer can see all the places that a person has lived to make sure they do background screening from every place the person has lived.

To read more about this subject read recent press release found at:
Lyft Potential Example of Continuous Background Screening Best Practice; Opines CriminalBackgroundRecords.com

At-Risk populations such as children and the elderly should always be cared for by good people that treat them with dignity and respect and never take advantage of them or harm them. Although it may not be possible to discover the true intentions of caregivers before giving them access to a vulnerable at-risk person there are certainly ways to greatly reduce that risk. The best course of action to do this is to perform a thorough background screening on them before they are hired or utilized. A thorough background screening should include several reference checks, verifications to determine if what they put on their application is true and of course a criminal background check that includes a national sex offender registry check.

A thorough background check on a caregiver is a best practice in protecting those being cared for. Not only can a background check verify application information, it could also give pause to any malfeasant characters with certain criminal history. A thorough background check can be a useful tool in risk mitigation.

Finding a caregiver can be a significant challenge. Often a caregiver might be utilized in a limited capacity, such as a babysitter. Parents may be new to a neighborhood and not know any of the older kids that may be willing to sit and, subsequently, look to a service to provide baby-sitting. Parents should ensure these services conduct thorough background checks on their caregivers before entrusting them with their children.

But when the time calls for longer term babysitting arrangements parents may want to conduct the background check on those individuals they wish to hire. Nannies and long-term babysitters should be thoroughly vetted through interview and background check.

From the Pocono Record (Aug 04, 19):

Experts suggest asking your potential sitter for three references. Ask the references whether the sitter was responsible, how they followed directions, why they no longer work for them and if they would ever consider hiring them again. “You cannot underestimate the power of parental intuition. If a potential sitter made a reference uncomfortable or makes you second guess your choices, beware. A parent should always trust his or her gut when it feels like something is off,”…. ^{poconorecord.com/entertainmentlife/20190804/expert-tips-on-how-to-find-safe-caregiver-for-your-child}

Three references in addition to a thorough background check is definitely a best practice.

Elder care can be more complicated, especially when one must consider the level of care. However, at any level of in-home caregiving individuals providing care must be thoroughly background checked to help ensure the patient is in good hands and won’t be abused.

It is clear that for any type of caregiver a best practice remains to have those individuals being held responsible for the care of at-risk populations (our kids, our elders, the handicapped and others) be properly background checked prior to having contact with such individuals.

To read more about this subject read recent press release: Background Screening & Caregivers

The debate on whether or not volunteers should undergo a background check continues and there are convincing arguments on both sides. Proponents for volunteer background checks say that in order to protect at-risk populations like children they need to be vetted properly to help weed out malfeasant individuals. While on the other side of the aisle people who are against volunteer background checks say that if people who would normally be willing to volunteer for certain positions may opt out of applying for those volunteer positions due to having to undergo a background check. Which means that we would lose a lot of good people that would otherwise be happy to offer their talents as a volunteer.

Every summer thousands of volunteers are required across a broad spectrum of activities. From summer sports to sleep over camp and hundreds of other places, volunteers interact with at risk populations daily and, subsequently, many believe should be thoroughly vetted. Background checks, especially criminal background checks on volunteers some believe should be a critical part of the vetting process and consider this approach a best practice for volunteer organizations.

And yet volunteer checks are often questioned as either unnecessary, inconvenient or too expensive.

Volunteer background checks are often considered an important tool in risk mitigation, one that can help protect at-risk populations and should be treated as a number one priority.

From an op-ed article posted to the Richmond-DailyNews.com (Jun 06, 19) and discussing the pros and cons of volunteer background screening:

The idea is a mixed bag. In some cases, potential volunteers may not like the hassle of government intrusion into their lives, with the result being that some otherwise decent volunteers may not bother. But there are also the rare cases where a background check might reveal a person has an unsavory history that disqualifies that person from being around children. Overall, erring on the side of caution – particularly when considering child safety – suggests background checks may turn away a few good people, but losing them is preferable to giving a pass to even one pedophile. ^{richmond-dailynews.com/opinion/gov-should-require-checks-on-volunteers/article_3a0a6312-8891-11e9-985f-d395ca0ace8a.html}

As of today this issue is still being discussed and both sides have not found common ground yet, but the bottom line is that volunteers are very much in demand and nobody wants a good person willing to contribute as a volunteer to be dissuaded to apply for a volunteer position due to the uncomfortability surrounding an impending background check and possibly the inconvenience of the whole process; yet no one wants an unsavory individual to gain access to at-risk populations like children either. There still needs to be some mediation on both sides so good volunteers aren’t scared away and also so the wrong type of individuals applying for volunteer positions never get hired.

To read more about this subject read recent press release found at: Background Checks for Volunteers: An Ongoing Debate; Opines CriminalBackgroundRecords.com

Just recently the City of New Orleans passed an ordinance preventing city contractors from asking about potential new hires criminal history on their job applications.  This new “Ban-the-Box” legislation adds the city to the growing list of jurisdictions currently having such laws.

The reasoning for adding ban-the-box laws is to give potential hires the opportunity to get the job based off of their skills and experience instead of immediately disqualifying them due to a criminal record.

Removing the box on a job application that asks about a person’s criminal history gives them a better chance at being considered for a job.  Ban-the-box laws like the one just recently adopted by the City of New Orleans relates to the use of criminal background records as part of the employment application process.

Typically applications include the “Box” to check if the applicant had a criminal past.  Just by checking this box is it suggested that many applicants make it no further in the process.

From the National Employment Law Project (Sep 25, 18):

Nationwide, 33 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. Borne out of the work of All of Us or None, 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/}

Background checks can still be conducted but the process is delayed in the hiring process.

In a similar move Duke University has joined other Universities and New Orleans in “Banning-the-box.”

From DukeChronicle.com (Nov 01, 18):

By “banning the box”—and therefore no longer requiring applicants to disclose their criminal records when initially applying—Duke follows a number of similar policies adopted at other colleges.

The move came after other university systems such as the State University of New York system and the University of California system banned the box for all job applicants in September 2016 and July 2017, respectively. Louisiana and Maryland have also instituted statewide bans disallowing colleges from asking about crimes during the application process, and the Common Application is set to follow suit for next year’s college application season.  _{dukechronicle.com/article/2018/11/dukes-move-to-ban-the-box-follows-trend-established-by-other-states-universities}

Although recently passed ban-the-box legislation by another city and another University doesn’t necessarily eliminate the use of a criminal background check in the employment screening or applicant screening process it certainly would delay it until for instance an initial offer was made.  Meaning that at some point background screening reports will still be used and it is still a best practice for Universities and cities to make sure when they are vetting new students and employees that they are using a well-qualified professional third-party background screening agency to do it.

To read more about this subject read recent press release found here: NOLO & Duke Join Growing List of Cities & Universities “Banning-the-box” on Employment & Academic Applications