Maine becomes the latest state to enact Ban-the-Box legislation laws which are designed to reduce discrimination in the hiring process as well as designate when the question of a criminal history can be asked, or if it can be asked at all.

Ban-the-Box laws continue to get enacted across the country and with every new law Hiring Managers and HR Departments should be reminded to ensure all hiring policies are current by working with a well-qualified third-party pre-employment background screening agency.

Advocates of Maine’s new Ban-the-Box law state the law will protect vulnerable populations from potential discrimination.

From the Maine Center for Economic Policy, on September 1, 2021:

Maine joined 14 other states in enacting protections for job applicants with a history of arrest or incarceration (LD 1167). These “ban the box” laws prohibit employers from asking about criminal history on a job application … The practice of running criminal background checks on job applications has been shown to disproportionately impact people of color, who are more likely to be unfairly arrested than white Mainers. ^{jdsupra.com/legalnews/maine-s-new-ban-the-box-law-when-can-6722814/}

Maine’s Ban-the-Box legislation goes into effect on October 18, 2021. The new law will significantly impact hiring of new employees and how background screening is managed.

From JDSupra.com on September 3, 2021:

The new law prohibits an employer from requesting “criminal history record information” from an applicant on the employer’s initial employment application. Criminal history record information is defined broadly and includes, among other things, arrests, detentions, indictments, sentencing, involuntary commitments, and criminal dispositions.

An employer may, however, inquire about an applicant’s criminal history record information, including through background checks, during an interview, or after the employer has determined that the applicant is otherwise qualified for the job. ^{mecep.org/blog/progress-for-maine-workers-in-the-first-part-of-the-130th-legislature/}

In the end employers should take great care in hiring new employees and in the vetting process as a whole. Being aware of and understanding the laws that govern public records, such as Criminal History Reports, is paramount.

To read more about this subject read recent press release: Ban-the-Box Train Keeps Rollin and Will Keep Rollin

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

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

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

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

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

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

Many employers don’t perform a thorough pre-employment background check as many don’t perform reference checks as part of a complete employment screening program. Criminal background checks and social security validation don’t always give a complete picture of a potential employee. Reference checks completes the background screening process by validating certain information provided on an employment application.

Professional reference checks include previous employer verification, education verification, licenses and certifications verifications and also personal and professional reference checks. Additionally other information can be verified as well such as military service records.

Reference checks are a critical part of a pre-employment background check, but sometimes they are forgotten or overlooked or not taken as seriously as one might expect.

Don’t forget about Reference Checks…

Reference checks are a critical component in background screening, one that is vital in verifying information provided by applicants. Sometimes certain kinds of reference checks can take days to complete as the person needed for the reference check may not be readily available. However, when making a long-term decision such as hiring someone it is worth the wait to acquire all the information necessary before making a permanent hiring decision.

From theBalanceCareers.com (Apr. 17, 19):

Many employers check references as part of the hiring process. A reference check is when an employer contacts a job applicant’s previous employers, schools, colleges, and other sources to learn more about his or her employment history, educational background, and qualifications for a job. ^{thebalancecareers.com/what-is-a-reference-check-2062974}

As with any part of the pre-employment background screening process, a reference check, in most cases, must be allowed or given permission by the applicant. Generally, an applicant will sign a release form which will allow for HR or a third-party background screening agency to conduct a reference check. Explicit permission must be granted by the potential employee/applicant in order to use an “investigative consumer report” which may include information about the character of the person, general reputation, personal characteristics and mode of living. This information may be obtained by interviews from people acquainted with the person being investigated.

To read more about why reference checks are such a critical part of the overall pre-employment background screening process and how they paint a more accurate picture of an applicant read recent CriminalBackgroundRecords.com press release: But What About Reference Checks as a Part of Pre-Employment Background Screening

In recent years the United States economy has been booming and the unemployment rate has dropped significantly.  The result of this situation has turned into a shortage of available employees for open positions across the country.  While hiring qualified candidates for certain positions has become increasingly more difficult that does not mean that employers should become lax in their employment screening efforts.

The situation is so prevalent that the term “employee ghosting” has become a common term used when a potential employee gets an interview or even gets hired for a job and then never shows up for work.

Another factor is Ban-the-Box legislation that prevents employers in a certain jurisdiction, State etc. from asking a job applicant if they have a criminal background record.  It is clear that with a booming economy (leaving employers with smaller applicant pools) and not being able to ask about criminal history until an initial offer is made is helping people like ex-cons find gainful employment which may lead to a reduction in recidivism and give many US citizens the opportunity they need to live a productive and meaningful life.

The effects of low unemployment have been felt across the country.

In Colorado the labor shortage has had wide-ranging affects on business and business owners.

From the Coloradoan (Aug 11, 2018):

A decade ago, L&L Acoustical averaged about 60 jobs a month.

Today, the drywall company completes 35 to 40 jobs, not because the work is shriveling up — quite the opposite. There’s enough work to do 60 to 70 jobs in Fort Collins’ robust housing climate, co-owner Gery Lockman said.

While work is plentiful, the workers are not.  ^{coloradoan.com/story/money/2018/08/11/colorado-labor-shortage-worsens-fort-collins-housing-woes/928718002/}

Another phenomenon related to plentiful employment is something called “ghosting.”

From Jacksonville Florida’s NBC affiliate, News4Jax (Jul 26, 18):

You’ve probably heard of ghosting — where people go out on a date and never hear from that person again. Well, it’s something that’s become more common in the professional world.

People are landing an interview or a job and then turn into a no-show.

Business owners and staffing agencies say they are dealing with “employee ghosting” now more than ever before.  ^{news4jax.com/news/employee-ghosting-spooking-business-owners}

It is certainly the case that some employers have altered pre-employment background screening policies in order to fill open positions but employers should remain diligent in their hiring policy.  Even with low unemployment rates and smaller applicant pools it still remains a best practice to work with a professional employment screening agency before hiring anyone.

To read more about this subject read recent press release found at: Booming Economy Helps “Ban-the-Box”

When it comes to laws affecting employment screening in the USA there is none more prevalent than Ban-the-Box laws.  Ban-the-Box laws were designed and implemented to assist the class of citizens in this country with a previous criminal record to get a better chance of being hired.  By eliminating the question of “criminal history” from the job application form it is felt ex-offenders with criminal records will get a better chance at gainful employment.

It is very important that employers across the country pay attention to these ban-the-box laws that have been previously enacted and any new ones coming into law now and in the near future.  If an employer is in a jurisdiction, city, county or State with such laws in place then they have to obey them which means they will most likely have to update their employment screening policies and procedures.  It is not just about removing the question of criminal history on the job application, it is also about when and why employers can legally perform criminal background checks on their applicants.

The ban-the-box movement is still very alive and active in the USA.  It is now incumbent on employers in this country to not only pay attention to these laws but to also make the necessary changes to their pre-employment background screening processes in order for their hiring practices to remain or become legally compliant.  It has become clear all across the country and through such laws that the act of discrimination in the hiring process and discrimination in the housing industry will no longer be tolerated.

From the National Law Review’s webpage (Jun 08, 18)

“Ban the Box” laws prohibit or limit an employer’s ability to ask a job applicant about his or her criminal record. States, counties and cities have enacted this legislation to help applicants with criminal records combat additional barriers to securing employment.  ^{natlawreview.com/article/ban-box-updates-massachusetts}

As of this publication date all across the country a large number of states and cities have already enacted some manner of ban-the-box legislation.

With this kind of constant change in law it is very wise and a best practice for employers all across the country to partner with a professional employment background screening company to help them remain compliant in all aspects of the hiring process.

To read more about this subject read the recent press release: Stay Current with Ban-the-Box Laws