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6 Types of Screening Laws to Know
For employers, there is a complex web of laws, regulations, and guidelines surrounding pre-employment screening and what is permitted when conducting background checks and reviewing the results. In addition to the federal Fair Credit Reporting Act (FCRA), there are many state, county, and city regulations that employers may need to consider when drafting your background check policy and adjudication practices. This brief overview highlights the six common types of screening laws that often impact employer’s screening selections or the timing of your hiring process.
While compliance is essential for all employers, if you’re hiring in a regulated industry or across multiple locations, you may need to pay closer attention to the evolution of these laws and others to better mitigate risk.
1. Ban the Box
Ban the Box laws initially referred to the box on a job application where candidates indicate whether they have an arrest or conviction history. The Ban the Box movement has since evolved into a variety of state, city, and county laws that may also govern when employers are permitted to conduct a background check during the hiring process. We anticipate a decrease in new Ban the Box laws in the years ahead and a potential reconsideration of existing laws. Learn more.
Example: California law prohibits public and private employers with at least five employees from asking about a candidate’s criminal conviction record on a job application and before offering them a job. Many city- and county-specific Ban the Box laws also apply to encourage fair hiring practices.
2. Automatic expungement
Expungement is the process of removing a record from an individual's criminal history. Typically, people must petition the court to have their records expunged, but a growing number of states are passing expungement laws which are designed to automate record clearance. When these laws are comprehensive and cover a significant number of charges, the laws are called “Clean Slate.” Currently, over twenty states have implemented such laws requiring courts to automatically expunge eligible criminal records. Learn more.
Example: Michigan law automates the expungement process for up to two qualifying felony convictions and up to four qualifying misdemeanors.
3. Wage history
In an effort to further protect candidates and employees from discrimination and wage inequality, many states and cities have passed laws that prohibit employers from inquiring about a candidate’s pay history or making hiring decisions based on a lack of previous wage information. Learn more.
Example: Alabama law prohibits all employers from refusing to hire, interview, promote, or employ a job candidate based on the candidate’s decision not to provide pay history.
4. Credit history
The federal FCRA regulates the use of credit history information for employment purposes. Generally, employers cannot perform a pre-employment credit check unless the job in question meets certain criteria. Some states and cities have also enacted laws regulating when pre-employment credit checks can be conducted and how information from credit reports may be used when making employment decisions. Learn more.
Example: Colorado law prohibits employers from using pre-employment credit checks except in the certain cases where a credit check is substantially related to the position in question.
4. Drug testing
While employers across the US must adhere to federal regulations, state and city drug testing laws may vary by employer type (public or private) or industry. The provisions may include positions with mandatory drug testing, requiring written notice prior to conducting a drug test, waiting until a conditional offer of employment is made, using specified labs for testing, and more. Learn more.
Example: Maine law prohibits employers from conducting pre-employment drug tests until a conditional offer of employment has been made or the candidate has been offered a position on a roster of eligibility.
5. Cannabis use
As more states legalize cannabis for medical or recreational use, laws regarding employment drug screening for marijuana are rapidly evolving. Legislation in this area may include provisions prohibiting employers from taking action against candidates who use cannabis outside of work, discrimination against qualifying users of medical marijuana, or denying employment on the basis of a positive drug test. Learn more.
Example: Nevada law prohibits employers from denying employment to a job candidate based on testing positive for marijuana. Certain positions are exempt.
Learn best practices for navigating compliance
Disclaimer
The resources and information provided here are for educational and informational purposes only and do not constitute legal advice. Always consult your own counsel for up-to-date legal advice and guidance related to your practices, needs, and compliance with applicable laws.
About Checkr
Checkr’s mission is to build a fairer future by improving understanding of the past. Our platform makes it easy for thousands of customers to hire millions of people every year at the speed of the gig economy. Using Checkr’s advanced background check technology, companies of all sizes can better understand the dynamics of the changing workforce, bring transparency and fairness to their hiring, and ultimately build a better future for workers.