Start the new year with our quick roundup of new legislation regulating employment background screenings. Find out whether these 11 new federal, state and local laws impact your hiring in 2022 and find out what you need to know to stay compliant.
Laws regulating the hiring process are always in flux, and it’s important for HR teams to stay current on the latest legislation. From ban-the-box laws to marijuana testing and more, here are 11 recently enacted laws that may affect your background screening process in the coming year and beyond. Keep reading to see if your hiring practices need a refresh to stay in compliance.
Federal Laws & Regulations
The federal Fair Chance to Compete for Jobs Act of 2019 (Fair Chance Act), which took effect December 20, 2021, applies to federal agencies and to employers with federal contracts, whether civilian or defense. The law prohibits asking candidates for employment about criminal history until a conditional job offer is made. Exceptions include jobs with access to classified information; jobs involving law enforcement or national security duties; or jobs where employers must legally consider criminal history.
State & Local Laws
Several states and cities have passed new regulations affecting drug screening, fair hiring, and more.
As of July 1, 2022, employers cannot take adverse action against job candidates or current employees based on pre-hire marijuana use. If current employees test positive for marijuana, adverse action can be taken only if employers have a written drug testing policy in place, there was “reasonable suspicion” the employee used cannabis on the job, or the employee showed signs of impairment at work. Exceptions include jobs involving driving or supervising children and jobs affecting public health and safety.
Effective July 1, 2021, HB 1862 forbids employers from taking adverse action against a job candidate or current employee for lawfully using cannabis oil. Employees must have written certification from a practitioner that the oil is being used to treat symptoms of a diagnosed condition or disease.
As of January 1, 2022, Philadelphia employers can’t require job candidates to go through pre-employment marijuana testing. Exceptions include law enforcement jobs, commercial driving jobs, and jobs requiring supervision of children or vulnerable individuals. Current employees can still be screened for marijuana use.
FAIR HIRING LAWS
The list of states and localities with fair chance hiring laws is growing. Here are the latest changes.
As of August 1, 2021, employers cannot request or consider a candidate’s arrest record or non-convictions when making hiring decisions. Employers can consider a candidate’s criminal history only if an individual assessment (as recommended by the Equal Employment Opportunity Commission) determines that the history directly relates to the job duties. Employers must also provide a copy of any background screening results used in the hiring process if the candidate requests it in writing.
Effective October 18, 2021, employers cannot ask about criminal history on initial job applications. Job applications or advertisements cannot say that people with criminal histories shouldn’t apply or won’t be considered. There are exceptions if other federal or state laws require criminal background screenings, disqualify candidates with criminal convictions, or prohibit employers from hiring people with certain criminal convictions.
An amendment to Philadelphia’s Fair Criminal Record Screening Standards ordinance (FCRSS), effective as of April 1, 2021, expands this law to cover current employees, independent contractors, and gig workers. FCRSS prohibits asking potential hires about their criminal background on job applications or during interviews. Criminal background checks can take place only after a conditional job offer is made.
NEW YORK CITY
Amendments to the New York City Fair Chance Act, effective July 29, 2021, require employers to conduct all non-criminal background screenings before making a conditional offer of employment. Criminal background checks and motor vehicles checks can only be performed after the conditional offer is made. Many employers currently wait until after making an offer to conduct all screenings, but best practice going forward is to split screenings into two stages.
VOLUNTEER BACKGROUND SCREENING
As of January 1, 2022, California law AB 506 requires all administrators, employees, or regular volunteers of youth service organizations to undergo a background check to identify and exclude those with a history of child abuse. “Regular volunteers” are defined as those aged 18 and older who supervise or have direct contact with children for more than 16 hours per month or 32 hours per year.
SALARY HISTORY BANS
Effective October 1, 2021, Nevada employers cannot request job candidates’ wage or salary history for use in making decisions about hiring or pay. Even if the employee shares that information voluntarily, employers cannot consider it.
UPDATE ON DATE OF BIRTH REDACTION POLICIES
A rule that would have redacted dates of birth (DOBs) from court records statewide as of January 1, 2022, has been amended. Under the revised rule, effective April 1, 2022, individuals (such as consumer reporting agency employees) may access birth dates on criminal records for identity matching purposes with the candidate’s consent. Learn why DOB redaction policies are becoming more common and what it means for the background screening process.