The year 2016 so far has experienced many changes in the background screening industry due to new laws and regulations affecting the use of criminal background records in the employment screening process. With new ban-the-box laws being implemented in many States and the recent legalization of recreational marijuana it is time for US employers to review their existing hiring practices and make any necessary updates in order to remain compliant with this new legal environment. Of course, the best way to go about this process is to work with a professional background screening company which can assist greatly in creating a compliant employment screening policy and of course can supply the background reports required in making sound hiring decisions.
The use of public records, specifically consumer credit reports, is regulated by the Fair Credit Reporting Act (FCRA) and is enforced principally by the US Federal Trade Commission and the Consumer Financial Protection Bureau. The use of other reports, such as criminal background records, is protected and enforced by the Equal Employment Opportunity Commission under the authority of the Civil Rights Act of 1964 including its various updates and expansions. During the course of 2016 we have seen new initiatives by these entities and a better understanding shown through guidance’s and legal action against organizations demonstrating discriminatory practices in their hiring process.
Proposition 64 in California passed and now recreational marijuana use is legal. Additionally and maybe of more importance is the affect this law will have on individuals with previous marijuana related criminal records. The new law goes as far as releasing currently incarcerated offenders convicted of low level, non-violent marijuana related crimes and this will have an impact on employment screening polices in California and other States who also recently passed similar laws.
The Los Angeles Times paraphrases Proposition 64 neatly in the passage below:
From LATimes.com (Oct. 30, 16):
The initiative would allow Californians to possess, transport and use up to an ounce of marijuana for recreational purposes, and would allow people to grow as many as six plants. The measure would also impose a 15% tax on retail sales of the drug. latimes.com/politics/la-pol-sac-proposition-64-marijuana-legalization-qa-20161030-snap-20161029-story.html
Beyond legalizing recreational use of marijuana for adults, Proposition 64 provides for the release of criminals convicted of non-violent related crimes.
From Forbes.com (Nov. 11, 16):
“While the economic benefits of fully legalizing marijuana for adults has been clearly articulated, I believe that one of the greatest social impacts that hasn’t been publicized enough is that non-violent criminals who are in prison because of activities associated with cannabis will be released,” said Derek Peterson of Terra Tech Corp.. “Not only will this save the state taxpayer dollars, but it will allow these people a second chance to be productive members of society.” forbes.com/sites/debraborchardt/2016/11/07/could-californias-marijuana-law-affect-the-entire-country/print/
Changes from Proposition 64 will be immediate and impact a great many people currently in the system as well as those awaiting trial and/or final disposition.
From the Orange County Register (OCRegister.com, Nov. 4, 16):
Since Prop. 64 would reduce penalties retroactively, anyone who’s been convicted of a marijuana-related misdemeanor or felony in California could petition to have their sentences reduced or their records expunged…And some people with pending marijuana charges could see them automatically dropped or downgraded. ocregister.com/articles/marijuana-734244-prop-drug.html
In the end any legal action that affects existing law will immediately impact employment screening. Employers will have to be more cautious with their use of criminal background checks as part of pre-employment background screening. Just as Ban-the-Box legislation has caused some confusion in background screening, passage of Proposition 64, as well as similar ballot measures across the country, highlights the urgent and immediate need for all employers to work with a well-qualified third-party background screening agency in order to continually maintain compliance with law and accepted legal practice in the use of public documents used in background screening.
With all the new laws of 2016 now is the time for employers to work with professional background screening companies in order to review and most likely make updates to current employment screening policies to reflect the new legal landscape and maintain compliance. Laws like ban-the-box and the legalization of marijuana in many States are breaking down the barriers of employment for individuals with criminal records making it easier for them to get a job and subsequently become productive members of society. This will also take a huge burden off the judicial system and law enforcement and should save taxpayers money. However, criminal background checks and other background reports will still remain in use for employers to gain a full understanding of prospective employees. The difference now is that many of them cannot ask applicants right away if they have a criminal record and cannot use non-violent marijuana related crimes as crimes anymore and that will make a difference in the hiring process.
To learn more about why now is a good time for employers to review employment screening policies and how new laws like proposition 64 will effect background screening and what is considered a criminal record verse what is now being decriminalized read the recent CriminalBackgroundRecords.com press release here.