Ban the Box：所谓的“ban-the-box”立法（禁止雇主要求申请人在已被定罪的情况下勾选就业表格上的方框）在 2015 年在全国范围内引起了广泛关注，甚至得到了美国总统奥巴马的支持。立法仍在等待，但预计将在全国各地的司法管辖区通过。跟上禁令是一项挑战，因为各州的采用情况各不相同，其实施也在不断发展。最初，法律的字面意思是在最初的工作申请中不包括先前定罪的复选框。现在，活动人士和立法者正在采取更进一步的措施并增加额外的要求。
例如，去年，纽约市通过了“公平机会法案”，该法案修订了该市关于禁止盒子的人权法。随着这一变化，雇主不仅需要从他们的工作申请中删除关于先前定罪的问题，而且他们必须等到有条件的工作机会被延长之后，才能询问或考虑申请人的先前刑事定罪。如果他们想撤回有条件的要约，他们还必须进行具体的调查，评估第 23-A 条（与纽约的更正法有关）中的八个因素中的每一个。最后，他们必须在撤回要约之前向申请人提供书面询问和分析，并允许他们在收到询问后至少三个工作日内回应雇主的疑虑。
大麻：我们怀疑是否会看到围绕大麻合法化的法规激增，因为它在联邦一级仍然是非法的。但是，雇主应确保他们有一个明确的计划，说明他们如何在医疗和娱乐大麻合法的司法管辖区解决这个问题。例如，您的总部可能位于大麻非法的州，但在合法的州招聘。那么您应该遵循哪些准则呢？虽然确定此指南和其他与大麻相关的指南的答案可能不在您列表的首位，但现在是了解事实并领先于游戏的时候了。随着即将到来的 2016 年总统大选以及接下来的几年，我们可以期待开始看到大麻立法的进展。
针对雇主的诉讼：在 2016 年，我们肯定会看到针对雇主的诉讼有所增加，特别是在与《公平信用报告法》相关的案件中——特别是雇主的披露和授权表格，以及确保雇主遵循所需的不利行动程序。一些备受瞩目的案件为该领域的更多诉讼开辟了道路，而且肯定会有更多案件跟进。公司需要通过确保所有与 FCRA 相关的披露和授权表格都符合要求并在进行背景调查之前获得批准来保护自己。此外，如果他们希望撤回申请人的工作机会，或者根据申请人的信用报告采取任何其他不利行动，他们应该评估他们的流程，以确保他们符合 FCRA 的要求。
EEOC 指南：作为背景知识， EEOC 指南 涉及雇主在雇用先前被判有罪的个人时必须遵守的协议。这通常包括个性化评估，深入了解潜在员工的信念是否与工作相关。2016 年，EEOC 将继续关注和监督雇主，以确保他们没有以任何方式、形式或形式存在歧视。例如，雇主不能做出任何笼统的陈述，例如“我不会雇用任何重罪犯”。
When it comes to background checks, regulations are an undeniable and unavoidable reality. In order to steer clear of costly and unwanted complications, employers need to be properly educated on the ever-changing employment laws. In 2015, new regulations from the Equal Employment Opportunity Commission pertaining to background screening made national headlines on an almost-daily basis. So, what can we expect in 2016? We’ll see a continuation of the hiring regulations that changed the face of employee screening last year.
Ban the Box: So-called “ban-the-box” legislation (prohibiting employers from asking applicants to check a box on an employment form if they’ve been convicted of a crime) gained major traction across the country in 2015 and has even drawn the support of President Barack Obama. Legislation is still pending, but expected to pass, in jurisdictions throughout the country. Keeping up with ban the box is challenging, as adoption varies state by state and its implementation continues to evolve. Initially, the law literally meant not including the checkbox for prior convictions in the initial job application. Now, activists and lawmakers are taking this much further and adding additional requirements.
For example, last year, New York City passed the “Fair Chance Act,” which amended the city’s Human Rights Law regarding ban the box. With this change, not only do employers need to remove the question about prior convictions from their job applications, but they must wait until after a conditional job offer has been extended before inquiring about or considering the prior criminal convictions of the applicant. They must also conduct a specific inquiry evaluating each of the eight factors in Article 23-A (pertaining to New York’s Correction Law) if they want to withdraw the conditional offer. Finally, they must provide the written inquiry and the analysis to the applicant prior to withdrawing the offer, and allow them at least three business days from the receipt of the inquiry to respond to the employer’s concerns.
Credit Checks: Another thing to note is the evolving role of credit checks in employee screening. Many employers will begin to move away from this type of background check as a best practice due to the increasing number of states and jurisdictions with restrictions. Why? Because many argue (depending on the job) that it has no correlation to potential job performance. States, including New York, have also begun passing regulations to formally ban this practice and it is being scrutinized at the federal level as well.
Marijuana: It’s doubtful we’ll see an explosion of regulations around legalized marijuana, as it is still illegal on the federal level. However, employers should ensure they have a clear plan in place regarding how they address the matter in jurisdictions where medical and recreational marijuana is legal. For example, you may be headquartered in a state where marijuana is illegal, but be hiring in a state where it is legal. So what guidelines should you follow? While determining the answer to this and other marijuana-related guidelines may not be at the top of your list, now is the time to understand the facts and get ahead of the game. We can expect to start seeing movement on marijuana legislation with the impending 2016 presidential election and in the years to follow.
Litigation Against Employers: In 2016, we’ll surely see an increase in litigation against employers, particulary in cases related to the Fair Credit Reporting Act—specifically, employers’ disclosure and authorization forms as well as ensuring the employer is following the required adverse-action process. A few high-profile cases have opened the way for more litigation in this area and more are sure to follow. Companies need to protect themselves by ensuring all FCRA-related disclosure and authorization forms are compliant and approvals are secured prior to administering background checks. In addition, they should evaluate their processes in the event they wish to withdraw an applicant’s job offer—or take any other adverse action based, even in part, on the applicant’s credit report—to ensure they’re in compliance with FCRA requirements.
EEOC Guidance: As a bit of background, EEOC Guidance involves the protocols employers must abide by when hiring individuals previously convicted of a crime. This typically includes an individualized assessment that dives into whether the potential employee’s convictions are related to the job. In 2016, the EEOC will continue to look at and monitor employers to make sure they aren’t discriminating in any way, shape or form. For example, employers cannot make any blanket statements, such as, “I will not hire any felons.”
We are seeing more legislation related to providing people with a second chance when it comes to employment consideration. Both the EEOC and local and state governments share this notion and are ready to fight for further opportunities for reformed individuals—and rightfully so. We agree that everyone deserves a job, but not everyone deserves every job. These emerging laws help companies get the information they need to make informed hiring decisions, while giving everyone a fair chance at employment.