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Ban the Box: 20+ Years of Fair Chance Legislation

It all began more than 20 years ago, when Hawaii became the first state to officially pass Ban the Box legislation—law designed to provide those with criminal history a better chance of earning employment without having their misdeeds prevent access to job opportunities.

From its humble beginning as a grassroots, civil rights movement borne of All of Us or None, evolving legislation to provide applicants with fair chance quickly gained momentum nationwide. As law is generally applied today, Ban the Box prohibits certain employers from making criminal history inquiries until a later point during the application and employment process. Ban the Box laws typically:

  • Restricts employer inquiries prior to an applicant’s job interview or even a conditional offer of employment
  • Sets guidelines for how far in the past criminal history may be requested
  • Prevents job position ads from excluding applicants with criminal history

Legislation Today

20+ years later, this growing legal trend to lower barriers faced by job applicants with criminal records has progressed past the removal of an application’s “box,” to now include additional procedures designed to force employers to look past an applicant’s criminal history when making a hiring decision.  Additional requirements are unique to jurisdictional law, but most share a common theme:

  • Remove the check box from the application
  • Wait until further along in the hiring process to ask an applicant if they have a criminal history (this includes requesting a background check), for example, post interview or post offer
  • When making an adverse decision based on an applicant’s past criminal record, provide the applicant with specific details on what part of their background check caused the adverse decision, the business necessity for the decision, and in some cases, your company’s policy regarding the hiring of applicants with a criminal history

37 states, the District of Columbia, and over 150 cities and counties have adopted Ban the Box

With representation across nearly every portion of the country, 37 states now include guidelines for public-sector employment. These states include:

Arizona, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Utah, Vermont, Virginia, Washington, and Wisconsin.

Further, extending fair chance law beyond government employment to private-sector employment helps ensure applicants with criminal records have a fair chance at employment across the majority of jobs. To date, fifteen states and 22 cities and counties have passed legislation to remove criminal history questions from job applications for private employers. States include:

California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.

Putting this all into perspective, it means that more than 267 million people—that’s more than four-fifths of the U.S. population—now lives in a jurisdiction with some form of fair chance law or policy.

Ban the Box and Your Employment Background Screening Program

Now, keep in mind that this evolving legislation regarding fair chance hiring does not prohibit your organization from performing criminal checks as part of your employment risk mitigation. It simply means that criminal history inquiries must be delayed until further in the hiring workflow. And, in addition to removing the “box” from employment applications, employers may be required to ask about criminal history either after an interview is completed, or after a conditional offer has been made.

As an HR professional, there’s a lot to consider (or continue to consider) as you navigate applicable Ban the Box legislation:

  • Audit your workflow. That will mean meeting regularly with your legal counsel to ensure your employment applications, related forms, and your overall hiring program is compliant.
  • While you’re at it, keep your legal counsel on speed-dial to ensure you’re updated with changes in legislation and fair chance policy. If you live in a state that isn’t impacted by Ban the Box law, it may not always be the case.
  • Take a look at job roles in your organization to further define where certain criminal history would pose increased risk among certain positions or your workplace as a whole. Likewise, there may be minimal risk opportunity within areas of your organization to extend employment to ex-offenders. This may be a good time to audit position definitions.
  • And finally, make sure you’re partnered with an employment background screening company (like A-Check Global) with updated compliance resources to help you navigate fair chance legislation and assist you in extending equal hiring practices to your applicants.

Please keep in mind that this Blog article is general in nature, and not all-inclusive in listing jurisdictions with Ban the Box law. Here is a complete listing of U.S. Cities, Counties, and States Adopting Fair-Chance Policies.

Please also note that A-Check provides a monthly compliance newsletter to keep you in the know with Ban the Box and other legislation updates, and we’d welcome the opportunity to add you to the mailing list. Simply email us at marketing@acheckglobal.com and let us know you’d like our compliance updates.

And, as always, we welcome your questions about this or any aspect of your background screening program. Please feel free to contact us.

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In the Know: October 2021 Compliance Updates

Consumer Reporting

District Court’s FCRA Decision:
Employer Guidance for “Clear and Conspicuous” Disclosure
As you know, before an employer pulls a consumer report for employment background screening purposes, the FCRA requires that the employer provides the applicant with a “clear and conspicuous” disclosure that the employer may obtain this report.

Furthermore, the disclosure document must consist solely of the disclosure. A recent Ninth Circuit Court ruling detailed that even with good will and intention, this disclosure must not include extraneous information—even if the employer believes that information is related to the disclosure.

The court did hold that disclosure may also include some concise explanation of what a consumer report is, how it will be obtained, and the type of employment purposes for which it may be used. However, additional information regarding consumer rights under federal and state law—additional information added in this instance by the employer to the disclosure—was extraneous. This case illustrates just how important strict compliance with the FCRA’s standalone requirement really is.
READ MORE

California and Michigan Date of Birth Redaction
As we’ve mentioned, efforts in Michigan and a number of California counties to redact date of birth from court cases reported via public indexes make timely employment background screening extremely challenging.

For California: 
A California Court of Appeal decision has unfortunately resulted in CA Courts restricting or limiting in-person research requests, and limiting PII provided for potential record matches. These efforts are being implemented with little notice, and as you can imagine, are having a profound impact in the ability for consumer reporting agencies to efficiently report criminal history.

For Michigan: 
Court rules in Michigan that limit PII provided to researchers are in effect. However, implementation has been delayed until January 2022.

A-Check Global, along with other CRAs, are very involved in working toward any and all potential opportunities for resolution. That said, answers may not be available in the near future. The Professional Background Screening Association (PBSA) Government Relations Date-of-Birth Redaction Task Force is also focused on resolution efforts, and they invite employers to learn about how to support the path toward solutions.
READ MORE

We’re focused on helping you remain compliant, and always welcome your questions.

I-9 Compliance

Ongoing Extension: Form I-9 Requirements in response to COVID-19

The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19. The general rule is that an employer must undertake a physical inspection of the document(s) presented by the employee for section 2 purposes.

UPDATE: Because of ongoing COVID-19 precautions, remote I-9 document review has been extended; the expiration date for these accommodations is now December 31, 2021.

The government has suspended the in-person and physical inspection of the document(s) presented by the employee when completing the Form I-9. During this time, an employer can view the document(s) presented by the employee via Zoom or Skype, for example.
READ MORE

Substance Abuse Testing

Rhode Island
Could Rhode Island be next? Lawmakers say they are very close to reaching a deal on a marijuana legalization bill that could be taken up during a special session this fall. A-Check will keep an eye out and let you know.
READ MORE

Connecticut
The Connecticut Governor signed Senate Bill 1201—effective in 2022—making CT the 19th state to legalize recreational marijuana for adults 21 years and older, but will allow employers to continue implementing drug-free employment policies. This new law will require expungement of certain existing marijuana convictions, but also creates employment protections for recreational marijuana users. That said, employers are permitted to continue prohibiting employees from engaging in the recreational use of marijuana, subject to certain statutory requirements.
READ MORE

AS A REMINDER: At A-Check, we’re happy to help implement a drug screening program that meets your evolving needs—or make adjustments to the program you’re already running with us. Just give us a call at 877-345-2021 and ask to speak with someone on your Client Relations team. 

Criminal History Reporting

Maine
Governor Mills signed into law LD 1167, “An Act Relating to Fair Chance in Employment.” With this new Legislation, Maine joins a growing number of states in adopting a “ban-the-box” law that restricts employers’ ability to ask job applicants about their criminal history. While there are exceptions, new law prohibits employers from requesting criminal history information on applications or stating that a person with a criminal history may not apply or will not be considered for a position. Employers are also prohibited from stating—prior to determining a person’s qualifications—that candidates with criminal history will not be considered. This new law goes into effect on October 18, 2021, and employers who do not comply with the new law are subject to a penalty of $100-$500 per violation.
READ MORE

Data Privacy

Ohio
California, Colorado, and Virginia have passed comprehensive consumer data privacy laws. Additional legislation was recently introduced that, if passed, would create the Ohio Personal Privacy Act. By introducing the Act, Ohio follows the growing trend toward stronger state privacy laws related to consumer rights. The Act primarily applies to businesses in Ohio or businesses that collect data about consumers in Ohio, and among other guidelines, dictates that businesses must provide a “reasonably accessible, clear, and conspicuously posted privacy policy” to inform consumers about the data collected.
READ MORE

Questions? We’re here to help!

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UPDATE: Court of Appeal Ruling will Continue Delays for CA Criminal Background Checks

As you likely know, courts across a number of California counties are now redacting date of birth from court cases reported via public indexes (online and public access terminals). Additionally—as we are now seeing in Los Angeles County—court clerks are facing restrictions against providing assistance to verify full dates of birth during criminal record checks. This negatively impacts a court researcher’s ability to quickly and accurately verify name/case matches—resulting in A-Check clients experiencing significant delays in county court searches throughout the state of California.

So, why the delay? In May, 2021, a case decision in All of Us or None vs. Hamrick provided direction for the removal of critical personal information—date of birth and/or driver license number—from public facing criminal court records. This case alleged that Riverside County allowed users of the Riverside Superior Court’s public website to search for criminal records by inputting a defendant’s date of birth, directly compromising the privacy of those involved in criminal proceedings. While this lawsuit was brought only against the Riverside Superior Court, it ultimately impacted most California state courts.

In September 2021, the California Supreme Court denied review in the matter, allowing—for now—the continuation of this information redaction. This denial by the California Supreme Court means that criminal record checks in California will continue to become more difficult, and in some cases impossible.

At A-Check Global, we know and understand this is extremely challenging for our valued clients. We will continue to work toward any and all potential opportunities for resolution—while also having full awareness that a solution may not be available in the near future. Furthermore, we anticipate that while this is limited to a select number of California counties, it is likely additional counties will adopt similar action.

We will continue to serve our clients by taking all possible steps to accurately match candidates to criminal records. For now, files with a possible match (as a combination of name and year or month/year of birth) will be noted with an extended turnaround time (TAT) and A-Check will continue to serve you to the best of our ability.

Additionally, there is activity within the background screening industry to find a viable solution to this situation. The Professional Background Screening Association (PBSA) Government Relations Date-of-Birth Redaction Task Force is currently executing two potential alternative paths to resolution:

  1. Work with the California Judicial Council to modify the rule.
  2. Create a legislative campaign to introduce statutory changes that requires the Judicial Council to modify the rule.

We’re here to help answer any questions you may have. Please don’t hesitate to contact us.

Featured

Compliance Clips for September 2021

Checklist of FCRA Requirements
We’ve included this information before, but it’s worth a repeat visit. When an employer uses a third party (like A-Check) to conduct background checks, there are FCRA compliance requirements that must be followed. For your convenience, here’s a short checklist of key requirements:

  • Ensure there is a permissible purpose for performing a background check on an applicant/employee, based on their role and responsibilities.
  • Provide clear written notice in a stand-alone document to the applicant/employee that a background check will be conducted, and the resulting information will be used to make an employment decision.
  • Obtain the applicant/employee’s written consent to perform a background check and/or investigative report.
  • If the background check information results in an adverse action decision, a notice of pre-adverse action, along with a copy of the background check results and a copy of the Summary of Your Rights Under the Fair Credit Reporting Act, must be presented to the individual.
  • Allow the individual at least five business days to dispute the information in the background check.
  • If adverse action is taken upon final decision, provide the individual with a final notice of adverse action.

We’re focused on helping you remain compliant, and always welcome your questions.

I-9 COMPLIANCE

Ongoing Extension: Form I-9 Requirements in response to COVID-19
The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19. The general rule is that an employer must undertake a physical inspection of the document(s) presented by the employee for section 2 purposes.

UPDATE: Because of ongoing COVID-19 precautions, remote I-9 document review has been extended; the expiration date for these accommodations is now December 31, 2021.

The government has suspended the in-person and physical inspection of the document(s) presented by the employee when completing the Form I-9. During this time, an employer can view the document(s) presented by the employee via Zoom or Skype, for example.
READ MORE

SUBSTANCE ABUSE TESTING

Connecticut
The Connecticut Governor signed Senate Bill 1201—effective in 2022—making CT the 19th state to legalize recreational marijuana for adults 21 years and older, but will allow employers to continue implementing drug-free employment policies. This new law will require expungement of certain existing marijuana convictions, but also creates employment protections for recreational marijuana users. That said, employers are permitted to continue prohibiting employees from engaging in the recreational use of marijuana, subject to certain statutory requirements.
READ MORE

California
A U.S. District Court in California held that an employer can condition an offer of employment on passing pre-employment drug screening, including a test for marijuana. In this case, a new employee was terminated for a positive marijuana test. The judge ruled that the employee failed to establish he suffered from a disability given the lack of detail or documentation submitted to the employer—and the employer had established a legitimate, nondiscriminatory reason for the employee’s termination.
READ MORE

New Jersey
New Jersey’s Cannabis Regulatory Commission released regulations on August 19, governing recreational cannabis use. However, these rules do not yet include standards for employers prior to conducting marijuana drug testing. Marijuana was legalized for recreational purposes in New Jersey in February 2021, including certain protections with regard to off-duty use by employees. Legislation now imposes a new requirement that work-related marijuana testing include a physical examination conducted by an expert—a Workplace Impairment Recognition Expert (“WIRE”)—trained to recognize drug impairment. That said, the Commission did not indicate how long it will take to develop the certification standards or when employers can expect regulations addressing marijuana testing.
READ MORE

AS A REMINDER: At A-Check, we’re happy to help implement a drug screening program that meets your evolving needs—or make adjustments to the program you’re already running with us. Just give us a call at 877-345-2021 and ask to speak with someone on your Client Relations team.

CRIMINAL HISTORY REPORTING

Louisiana
Effective August 1, 2021, Act No. 406 impacts employers conducting background screening prior to a job offer by prohibiting the request or consideration of an arrest record or charge that did not result in a conviction when a background check reveals that information. This legislation also requires employers to individually assess a candidate’s criminal history and determine if the outcome is directly or adversely related to specific duties of potential employment.
READ MORE

Maine
Taking effect October 18, 2021, Maine joins the growing number of states with new Ban the Box legislation to prohibit employers from requesting criminal history information on initial employment applications. While there are exceptions, new law prohibits employers from requesting criminal history information on applications or stating that a person with a criminal history may not apply or will not be considered for a position. Employers are also prohibited from stating—prior to determining a person’s qualifications—that candidates with criminal history will not be considered.
READ MORE

Questions? We’re here to help!

Featured

Compliance Clips for August 2021

CONSUMER REPORTING

FCRA Requirements
As you’re well aware, when an employer uses a third party (like A-Check) to conduct background checks, there are FCRA compliance requirements that must be followed. For your convenience, here’s a very quick checklist of key requirements:

  • Ensure there is a permissible purpose for performing a background check on an applicant/employee, based on their role and responsibilities.
  • Provide clear written notice in a stand-alone document to the applicant/employee that a background check will be conducted, and the resulting information will be used to make an employment decision.
  • Obtain the applicant/employee’s written consent to perform a background check and/or investigative report.
  • If the background check information results in an adverse action decision, a notice of pre-adverse action, along with a copy of the background check results and a copy of the Summary of Your Rights Under the Fair Credit Reporting Act, must be presented to the individual.
  • Allow the individual at least five business days to dispute the information in the background check
  • Upon a final decision, and if adverse action is taken, provide the individual with a final notice of adverse action.

We’re focused on helping you remain compliant, and always welcome your questions.

I-9 AND E-VERIFY

Ongoing Extension: Form I-9 Requirements in response to COVID-19
The in-person requirement for the Form I-9 is temporarily suspended if your company is taking precautions due to COVID-19. The general rule is that an employer must undertake a physical inspection of the document(s) presented by the employee for section 2 purposes.

UPDATE: Because of ongoing COVID-19 precautions, remote I-9 document review has been extended; the expiration date for these accommodations is now August 31, 2021.

The government has suspended the in-person and physical inspection of the document(s) presented by the employee when completing the Form I-9. During this time, an employer can view the document(s) presented by the employee via Zoom or Skype, for example.
READ MORE

CRIMINAL HISTORY REPORTING

Louisiana
Effective August 1, 2021, Act No. 406 impacts employers conducting background screening prior to a job offer by prohibiting the request or consideration of an arrest record or charge that did not result in a conviction when a background check reveals that information. This legislation also requires employers to individually assess a candidate’s criminal history and determine if the outcome is directly or adversely related to specific duties of potential employment.
READ MORE

Criminal Record Screening Policy Review
Now more than ever before, it’s important for employers to review their criminal record screening policies. It’s a balance between compliance with evolving laws, and risk mitigation in hiring practices. Class action plaintiffs’ attorneys have had some high-profile success negotiating settlements, and Ban the Box legislation continues momentum in a growing number of states. Now, when it comes to litigation against background screening efforts, courts can hold that employers are required to prove their criminal record screening policies are not just appropriate as a business necessity, but also prove that these policies accurately distinguish between applicants that do and do not pose an unacceptable level of risk. While we are here to answer any questions you may have, we also strongly recommend you have legal counsel available to guide your screening program decisions.
READ MORE

New York City
Effective July 29, 2021, New York City’s Fair Chance Act expands the scope of protection for applicants and employees with criminal histories. The FCA prohibits employers from denying employment based on an arrest or criminal accusation by expanding protection to prohibit any inquiry in writing or otherwise about a candidate’s arrest or criminal accusation. These amendments also offer additional candidate protection by expanding the list of information that employers are prohibited from considering, adding additional processes employers must take when presented with certain criminal information, and further clarifying other employer obligations under the Fair Chance Process. Here’s a great read on these amendments.
READ MORE

SUBSTANCE ABUSE TESTING

Connecticut
The Connecticut Governor signed Senate Bill 1201—effective in 2022—making CT the 19th state to legalize recreational marijuana for adults 21 years and older, but will allow employers to continue implementing drug-free employment policies.  This new law will require expungement of certain existing marijuana convictions, but also creates employment protections for recreational marijuana users. That said, employers are permitted to continue prohibiting employees from engaging in the recreational use of marijuana, subject to certain statutory requirements.
READ MORE

AS A REMINDER: At A-Check, we’re happy to help implement a drug screening program that meets your evolving needs—or make adjustments to the program you’re already running with us.

DATA PRIVACY

Colorado
Colorado is the second state this year to pass a law making it easier for consumers to protect personal data online. Colorado’s Privacy Act follows Virginia’s Consumer Data Protection Act (VCDPA) and California’s Consumer Privacy Act (CCPA). Among other things, Colorado’s legislation gives consumers the right to opt-out of targeted advertising and the sale of personal data. It also gives consumers the right to access, correct, and delete personal data collected, provides the right to obtain a copy of personal data in a portable format. Additionally, Colorado’s Act requires that consumers have the ability to opt-out via a universal channel that meets established technical specifications.
READ MORE

Questions? We’re here to help!