Today’s fluid job market poses both challenges and opportunities for employers.
Keeping up to date with laws governing background screening compliance can be complex in the best of times. Due to the chaos caused by the COVID-19 pandemic, you may not be aware that new federal, state and local laws affecting background checks have gone into effect.
Here’s what you need to know about eight new regulations regarding fair hiring, marijuana screening, and salary history.
The past two months have upended “business as usual” for all of us. The COVID-19 pandemic has shifted our priorities, understandably, to the health and safety of ourselves, our families, and our communities. But despite our unusual, unprecedented circumstances and new way of operating our businesses, there are compliance laws going into effect that you, as employers, need to know about to mitigate risk to your business.
In this article, I’ll cover the new federal, state and local laws and regulations you may have missed over the past few months. I recently shared this information in a live webinar—if you missed it, click here to watch the recording on-demand.
Federal Laws & Regulations
There are two recent developments you should be aware of at the federal level—one directly relates to screening, and the other is a friendly reminder to start using the new I-9 Form.
Fair Chance to Compete for Jobs Act of 2019
Signed into law by the President in December 2019, this law does not take effect until December 2021. This is not a nation-wide private sector ban-the-box law. It applies to federal agencies and federal civilian and defense contractors, and prohibits inquiry into criminal history until a conditional job offer has been extended. There are obvious exceptions for safety-sensitive positions or where a check is required by law.
It’s important to note that a ban-the-box law at the federal level shows, once again, that this initiative isn’t slowing down any time soon, and we expect to see more cities and states pass their own versions in the next year.
New Form I-9
The U.S. Citizen & Immigration Services (USCIS) agency released a new Form I-9 in October 2019. The new form (with the 10/21/2019 edition date) will become mandatory starting May 1, 2020. The I-9 Form is used to verify the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must properly complete Form I-9 for each individual they hire for employment in the U.S., including citizens and noncitizens. Visit the USCIS website to get a copy of the new form and to learn more information.
State & Local Laws
At the state level, several new laws have gone into effect, or will soon go into effect, regarding marijuana screening, fair hiring, and salary history.
Two states, Nevada and New York, have implemented robust protections for job seekers and employees.
New York City
New York City’s new drug screening law goes into effect May 10, 2020. Once in effect, employers may not screen for marijuana or THC, unless the position is specifically excluded from the regulations. Excluded positions include safety sensitive positions or where the screen is otherwise required by law. Employers who screen for marijuana or THC for a position that is not exempted from the law will be found to have committed an unlawful discriminatory practice in violation of NYC’s human rights law.
Effective since January 1, 2020, the state of Nevada has banned employers from taking adverse action against job candidates solely for testing positive for marijuana. While employers may test for marijuana, they cannot use a positive marijuana screen as the sole reason for denying or terminating employment.
Further, employees in Nevada now have the right to challenge results of an initial drug screen if the employer required one within the first 30 days of hiring. Employers must then consider the second screening test paid for by the employee.
Fair Hiring Laws
With more than 180+ fair hiring laws in place across the country, the ban-the-box initiative continues to have momentum, and it shows no signs of slowing down.
The state of Maryland passed a ban-the-box law that applies to employers with 15 or more full time employees. Effective February 29, 2020, the law prohibits employers from asking about a candidate’s criminal history before the first interview.
Grand Rapids, Michigan
Effective since December 1, 2019, the city of Grand Rapids has enacted a Human Rights Ordinance that protects against discriminatory practices, which includes failing to hire due to criminal records, unless the decision is based on a “bona fide occupational qualification.”
What’s interesting about Grand Rapids is both the substance of the law and the approach used to get it passed. Interestingly, Grand Rapids’ law states that employers cannot consider non-conviction records in hiring. If you’re hiring in this jurisdiction, check with your CRA to ensure your candidates’ results only include conviction records and pending cases, not non-convictions. (If you use GoodHire, our platform incorporates all local ban-the-box laws into our reporting process, so non-conviction information will not be returned for employers subject to this ban-the-box law.)
In addition to the non-conviction rule, employers are also prohibited from denying employment to an individual with a criminal record unless the employer first performs a targeted screen and individualized assessment and can show that the decision is job related and consistent with business necessity.
The state of Michigan prohibits cities and towns in the state from passing their own ban-the-box laws, so it’s interesting that the Grand Rapids City Commission creatively structured their new law as a human rights law versus an employment law. I expect it will survive any legal challenges and remain valid.
At the local level, the city of Waterloo’s ban-the-box law goes into effect July 1, 2020. The law prohibits inquiries into criminal history before a conditional offer is granted.
Waterloo’s law shows us the long-term viability of these patchwork laws at the local, versus state, levels. Waterloo’s ordinance was challenged in court as being legally invalid. The business lobbying group that filed the suit had argued that state law blocks cities from restricting how a private business decides whether to hire a job applicant. But the judge found in favor of the city, stating that cities are allowed to pass ordinances aimed at civil rights issues.
Even in states where state laws prohibit local municipalities from passing their own fair hiring laws, we are now seeing city councils sidestep the prohibitions by using these types of “human rights” and “anti-discrimination” tactics, and this will likely continue in states with similar laws. This is an example of why it is a best practice for employers to plan for ban-the-box laws proactively by delaying inquiry into a candidate’s criminal history until later in the hiring process.
Salary History Bans
Effective since January 1, 2020, New Jersey’s new Salary History Ban Law prohibits private employers from inquiring about a job applicant’s salary history, benefits, and other compensation during the hiring process. Employers in New Jersey should confirm with their CRA that their employment verification results do not include salary history, or are otherwise inquiring into it.
It’s clear that wage equity laws aren’t going anywhere as more jurisdictions implement such legislation. If you use GoodHire, we do not include salary history in our credit reports, employment verifications, or any other search, preventing you from making an unintended inquiry that could put you in violation of the law.
GoodHire’s Got You Covered
The laws governing compliance can be complex, and it can be challenging to stay up to date as new laws take effect. At GoodHire, we take a proactive approach to compliance, and we take our compliance responsibility very seriously. We monitor the legal landscape closely, follow trends, and optimize our screening process to mitigate your risk of noncompliance. As always, we’ve got you covered.
The resources provided here are for educational purposes only and do not constitute legal advice. We advise you to consult your own counsel if you have legal questions related to your specific practices and compliance with applicable laws.