Compliance Update: New Laws Pertaining to Employment Screening

Posted: January 19, 2021

The legal landscape pertaining to employment screening evolved rapidly in 2020 and we expect for this trend to continue in 2021 and beyond. As always, Info Cubic is here to keep you updated and compliant on laws that are related to background checks. Here is a rundown of some of the recent legislation:

Ban-the-Box Laws

Numerous “Ban the Box” and Second Chance laws that impact Private Employers have been signed into law across 17 states and territories as well as the District of Columbia. These laws, which provide varying restrictions on how employers inquire into candidates’ criminal history, basically remove the “checkbox” that asks candidates about their criminal records on a typical job application. The thinking behind this is that applicants with criminal records can move past the initial hiring stage more easily. However, many ordinances still allow employers to consider convictions later in the process, particularly if criminal history can have an impact on the position that a candidate is applying for. 

Recent updates to state and city “Ban the Box” laws, include:

• New York (New York City) – bill Int. 1314-A – This bill significantly expands the existing NYC Fair Chance Act (FCA) and restricts the employer’s ability to take adverse action on certain types of records. Here are a few more key components of the legislation:
  • There must be a job-related analysis before disqualifying candidate based on a pending criminal offense and specify the conditions for disqualification.
  • There must be a job-related analysis of pending criminal matter including: 1) whether the applicant was 25 years of age or younger at time of offense, and 2) evidence of rehabilitation or good conduct including “history of positive performance and conduct on the job or in the community or other evidence of good conduct.
  • Employers must follow the FCA process for disqualifying based on pending criminal matter.
  • There must be a job-related analysis for convictions occurring during employment.
  • The law prohibits inquiry related to non-pending arrests, criminal accusations, youthful offender adjudication, sealed convictions, and adjournments in contemplation of dismissal. It also prohibits inquiries and decision-making based on violations and non-criminal offenses.
• Hawaii – SB 2193 (Effective 9/15/2020) – Hawaii has amended its original “Ban the Box” law to further protect ex-offenders and increase their opportunities for gainful and legitimate employment. The first state in the US to adopt such legislation, the Aloha State passed Hawaii Revised Statute § 378-2.5 in July of 1998, which prohibits private and public employers from inquiring into or considering conviction records for prospective employees until after a conditional offer of employment is made, and then only if that criminal conviction record “bears a rational relationship to the duties and responsibilities of the position.” Originally, the statute required employers to limit their inquiry and consideration to the past ten years, excluding any periods of incarceration.
• Virginia – HB 972 (Effective 7/1/2020) –  This new legislation prohibits employers from asking job candidates about past charges for simple marijuana possession in any application, interview, or during any other part of hiring, admission, or licensing process. The bill also states that a person’s criminal history record information must not include records of any charges or judgments for such violations and records of such charges or judgements must not be reported to the Central Criminal Records Exchange. The bill does state that if a violation occurs while an individual is operating a commercial motor vehicle, the violation will be reported to the Department of Motor Vehicles and will be included on such individual’s driving record.
• Montgomery County, Maryland (Effective 2/19/2021) – Prohibits employers (including county government employment) from making inquiries until a conditional offer made into arrests without conviction, 1^st degree conviction for trespass, disturbing the peace, or misdemeanor assault in 2^nd degree, or misdemeanor conviction when conviction date is older than 3 year and incarceration has ended.
• St. Louis, Missouri (Effective 1/1/2021) –  This new law prohibits inquiry on initial applications and forms or seeking publicly available criminal info. Inquiries are permitted after the candidate has been deemed “otherwise qualified, interviewed, and if inquiry is made of all candidates in the post interview selection pool.
• Waterloo, Iowa – Waterloo’s new legislation, which applies to employers with 15 or more employees, restricts employers from inquiring into a candidate’s criminal history and having it negatively affect a job offer given based on the findings. However, an exception can be made if a candidate’s criminal history would negatively affect their ability to perform or cause an unreasonable risk to the employer or their customers.

Other Notable Laws Related to Employment

• Florida Senate Bill 664 (Effective 01/01/2021) – This new legislation dictates that employers must use E-Verify or retain copies of Form I-9 Identity and verification documents for three years.
• Recreational Marijuana – The November 2020 election legalized recreational Marijuana has been legalized in four more states, including Arizona, Montana, New Jersey, and South Dakota. It was already permitted in AK, CA, CO, IL, MA, ME, MI, NV, OR, VT, and WA. This will have significant implications on employee drug screening.

It is essential for employers that conduct employee background checks to have a thorough understanding of new legislation that is being enacted. Info Cubic is always here to help! For questions regarding regulations and compliance related to employment screening, please contact Info Cubic at (877) 360-4636.