Ban-the-Box legislation has been sweeping across the country removing the box that asks if an employment applicant has a criminal past. The hope of the movement is to give job applicants with a criminal background record a better chance of getting employed by not having to admit they have a criminal record right away at the first phase of the hiring process.

Most recently some cities and states have looked into the removal of the box in rental housing applications. Now, the movement to ban-the-box has taken root in colleges and universities across the country and several states have recently taken steps to ban-the-box.

In Virginia, Gov. Northam signed legislation removing the “box” on state college and university applications.

From www.progress-index.com on June 3, 2021:

… were happy to be in attendance to see Gov. Ralph S. Northam ceremoniously sign legislation that removes that box from most Virginia-based colleges and universities. The legislation, which takes effect Jan. 1., 2022, has a special carve-out for Virginia Military Institute and for post-graduate law school programs.

The legislation does not completely take away criminal background checks, but it does push them further down the selection and acceptance process. That improves applicants’ chances of making it past the first round and provides an avenue for them to explain in detail just what that history included. ^{progress-index.com/story/news/2021/06/03/virginia-governor-removes-criminal-record-checkbox-college-apps/7527473002/}

At Florida Atlantic University staff are encouraging administration to ban-the-box. However, the efforts do create a perception of conflict, safety versus admission with criminal history.

From Yahoo.com on May 28, 2021:

A group of faculty members at Florida Atlantic University want the university to stop asking students to disclose their criminal histories on their applications — part of a growing movement to urge large schools and employers to rethink their application process.

The initiative proposed for FAU pits two interests against each other: the desire to give applicants with criminal pasts a chance at higher education against concerns surrounding public safety on school campuses. ^{news.yahoo.com/fau-ban-box-quit-asking-110000169.html}

The university continues to review its position.

And in Pennsylvania, similar efforts are underway.

From WHYY.org on October 21, 2020

A new bipartisan bill in Harrisburg would prohibit nearly two dozen universities in Pennsylvania from asking applicants about their criminal background records.

The Common Application, the most widely used college application in the country, stopped asking prospective students that question last year. But schools that want to continue using the application can still ask about a person’s juvenile and adult criminal records using their own supplemental forms. If the bill passes, that will no longer be an option.

Speaking at a virtual news conference on Wednesday, state Rep. Morgan Cephas (D-Phila.) said her “ban-the-box” legislation is needed now more than ever. ^{whyy.org/articles/ban-the-box-bill-would-nix-criminal-record-question-from-pa-college-applications/}

As Colleges, Universities and State Governments look deeper into banning the criminal history box on their applications the discussion on how to proceed and what will be best for each entity going forward will remain a hotly debated topic.

Across the country when and how criminal background reports can be used as a part of employment, renting and, recently, academic applicants has changed, and will continue to change. New laws are enacted on a regular basis, and a best practice remains to work with a well-qualified background screening agency in order to remain compliant with laws governing the fair, lawful, and legal use of criminal records.

To read more about why Colleges and Universities are now deciding to consider banning the question of criminal history on their admittance applications and why this use of ban-the-box laws is different than others being enacted like in the employment sector read recent CriminalBackgroundRecords.com press release: Ban-the-Box on College Applications Remain in the News

Starting in 1998 in Hawaii ban-the-box legislation has been sweeping across the country. It is an attempt to level the playing field in the employment process in the USA by removing the box on job applications that ask about criminal history. It is an agenda to give ex-cons and those with criminal background records a better chance to attain gainful employment.

As ban-the-box legislation continues to spread and evolve across the country new jurisdictions are joining in; most recently in Columbia, South Carolina and Waterloo, Iowa; and is under consideration in other municipalities, including a potential citywide ban in St. Louis. “Ban the box” is an attempt to create a fair playing field in employment by removing or “Banning” the question box asking about the criminal history of a job applicant.

Starting slowly in Hawaii in 1998 the ban-the-box movement in recent years has gained significant momentum.

From JS Supra’s website (Oct 22, 19):

Over the last several years, the “ban the box” movement has gained an impressive amount of momentum and support from lawmakers and activists across the nation. With an aim to provide job applicants a chance to obtain employment without the stigma of a conviction or arrest, “ban the box” laws require employers to consider an applicant’s qualifications before inquiring into or considering their criminal background record. While employers may still consider an applicant’s criminal record, they generally must wait until after the applicant’s initial interview or until they extend a conditional job offer, depending on the laws of the particular jurisdiction. ^{jdsupra.com/legalnews/many-states-and-municipalities-now-ban-22407/}

There are two new additions to the list and, potentially a third.

South Carolina

Columbia, South Carolina recently passed and enacted a ban-the-box law that will affect all governmental agencies, but not private employers.

From JDSupra.com (Nov. 01, 19):

The ordinance applies to the City of Columbia, government contractors, any person regularly employing five or more persons, any person acting as an agent of an employer, directly or indirectly, or any person undertaking for compensation to procure employees or opportunities for employment. Employment means any occupation, vocation, job, or work for pay, including temporary or seasonal work, contracted work and work through the services of a temporary or other employment agency, or any form of vocational or educational training with or without pay. ^{jdsupra.com/legalnews/update-columbia-south-carolina-enacts-72373/}

As often happens changes that affect the public section can eventually make it over to the private sector.

Iowa

Waterloo became the first city in Iowa to have ban-the-box legislation and just passed a second round of amendments.

From kwwl.com (Oct. 28, 19)

The second reading of ‘Ban the Box’ amendments passed through council tonight, the amendments were proposed by council after two work sessions.

Some of the main amendments put in place a violation enforcement policy and prevention of private action after an employer is found guilty of violating Fair Chance Initiative.

The council members against the initiative took a stiff stand against the passing of the amendments. ^{kwwl.com/homepage/2019/10/28/ban-the-box-amendments-pass-second-reading-in-waterloo-city-council/}

Additional amendments to a law, especially Ban-the-Box laws add to the complexity, and further highlight the need for employers to work with a well-qualified third-party pre-employment background screening agency.

St Louis

A concerted effort to add St. Louis to the rolls of Ban-the-Box legislations is well underway.

From KMOV.com (Nov. 04, 19):

“The proposed bill would prohibit employers in the City from basing job hiring and promotion decisions on an applicant’s criminal history unless the employer can demonstrate its relevance to the job-related decision, and inquiring about an applicant’s criminal history until after it has been determined the applicant is otherwise qualified for the position, unless the applicant is part of a final pool of applicants for the job position and all of the applicants are asked. The forgoing would not apply where the employer is required by law or regulation to exclude applicants with certain criminal convictions.” ^{kmov.com/news/alderman-pushes-for-citywide-ban-the-box-to-keep-criminal/article_5bb81b00-feb4-11e9-aff6-e7a6c7c2914c.html}

As seen by extensive previous ban-the-box legislation and now more recent legislation it is clear that the ban-the-box initiative is not going away but instead is steadily spreading across the nation. Additionally even though some of these laws only affect the public sector for now, they could eventually make there way over to the private sector.

New independent ban-the-box laws often differ considerably from other jurisdictions ban-the-box laws and that coupled with certain jurisdictions making additional amendments to their already existing laws add to the complexity, and further highlight the need for employers to work with a professional pre-employment background screening agency. Working with a professional employment screening agency is still a best practice for employers looking to remain compliant with all relevant laws.

To read more about the impressive momentum the ban-the-box movement has recently shown and to learn about the new laws and proposals from all over the country regarding ban-the-box legislation read recent CriminalBackgroundRecords.com press release: Ban-the-Box: News, Highlights, and Updates

New Ban-the-Box bills pass in one State and is denied in another.  The Ban-the-Box movement continues across the country but not every State wants it.  Ban-the-Box law passes in Colorado but is denied in Maryland.  Consistent laws regarding hiring practices still a mixed bag across the USA.  The Colorado Chance to Compete Act will prohibit employers from asking about criminal history on job applications.  So job applicants will not have to reveal whether or not they have a criminal background record in the initial phase of the hiring process.  However the Governor of Maryland vetoed a similar Ban-the-Box bill making consistency regarding hiring practices and policies around the country very confusing.

Ban-the-Box legislation activity continues across the country and action in Colorado and Maryland highlight continued challenges faced by hiring managers and HR Departments.  The actions with Colorado enacting Ban-the-Box legislation and Maryland denying Ban-the-Box to be implemented highlight the challenges employers face with laws governing the use of criminal history reports as a part of pre-employment background screening.

In light of these recent changes it is a safe and wise decision for employers and hiring managers to utilize the expertise of a professional employment background screening agency in order to remain fully compliant with law.

With Ban-the-Box legislation being enacted in Colorado and vetoed in Maryland, the challenges faced by HR Departments and hiring managers is greatly highlighted.

In May 2019 the governor of Colorado, Jared Polis signed and enacted a statewide Ban-the-Box law, affecting all private employers.

From JDSupra.com (May 31, 19):

On May 28, 2019, Colorado Governor Jared Polis signed the Colorado Chance to Compete Act (House Bill 19-1025), which will prohibit employers from asking about criminal history on an initial written or electronic application. Colorado employers should immediately assess whether they are covered by the new law and, if so, whether they need to update their employment applications and other pre-hire screening policies.  ^{jdsupra.com/legalnews/colorado-enacts-statewide-ban-the-box-72366/}

Whenever a law, such as HB 19-1025 in Colorado, goes into effect all employers, large and small, should review polices and job applications to ensure they are in full compliance with law.  While working with a third-party background screening agency should remain a best practice.

In Maryland efforts to enact Ban-the-Box legislation fell short.  After passing through both state houses the bill was vetoed by Governor Larry Hogan.

From the Washington Post (May 24, 19):

He also vetoed “ban the box” legislation that would have prevented many employers from inquiring about an applicant’s criminal history until after an initial job interview. In his veto letter, the governor said employers have the right to screen applicants’ criminal histories upfront. Advocates say the bill is crucial for former inmates who struggle to find jobs.  ^{washingtonpost.com/local/md-politics/hogan-vetoes-ban-the-box-legislation-bill-to-abolish-handgun-permit-review-board/2019/05/24/}

It is critically important for employers all across the country to review all new laws that affect the employment background screening process.  Since Ban-the-Box laws are not consistent throughout the USA it is important to find out any new laws that change how you can go about the hiring process especially when and where you can perform criminal background checks during that process.

Because Ban-the-Box laws that have been passed are not identical it is important to know which of these laws effect how employers can vet their job candidates in their respective State or Jurisdiction.  Additionally because the State of Maryland prohibited this kind of law it will not affect employers in that State.  To help employers clear up the confusion it is recommended to work with a professional employment screening company that is familiar with the laws relevant to employment screening practices and policy to assist in remaining compliant with law.

To read more about the new Ban-the-Box law in Colorado and why Maryland vetoed its Ban-the-Box bill and why inconsistencies in hiring policies around the country are so confusing for employers read recent CriminalBackgroundRecords.com press release:  Ban-the-Box Enacted In Colorado; Vetoed in Maryland – On-going Change Affecting Hiring Managers

This year is poised to see criminal justice reforms happen all over the country in regards to criminal conviction records and how they are viewed by society and as part of the employment screening process.

Across the USA over the last several years has seen the emergence of ban-the-box laws in an attempt to help the large portion of American’s with a criminal background record get a job.  Literally these laws ban an employment application from asking the question, “Do you have a criminal record”.  However, States and Jurisdictions are going beyond ban-the-box and have started initiatives to help those with a criminal past clean the slate and even get their older criminal conviction records expunged and behind them forever.

With the rapid expansion of Ban-the-Box legislation and the subtle transition from banning the box about criminal background to greater Clean Slate and expungement policies, background screening may be poised for significant change in 2019.

Across the country laws and attitudes governing criminal background records, as used in pre-employment background screening and expungement, overall have changed.  Momentum has increased with further updates to the criminal justice system and, subsequently, reform continues.

Pennsylvania recently enacted “Clean Slate” legislation.

From ElwoodCityLedger.com (Jan 06, 19):

People with old criminal records may have a chance at a fresh start through new state legislation that recently went into effect.

The Clean Slate program, which expands criminal record sealing, took effect Dec. 26. The legislation allows more people with minor convictions or arrests, including some first-degree misdemeanors, to petition the courts to have their records sealed after 10 years with no subsequent convictions.  ellwoodcityledger.com/news/20190106/clean-slate-program-gives-people-with-old-criminal-records-chance-to-seal-records

From MiamiHerald.com (Jan 06, 19):

Prison reform advocates are asking lawmakers to pass legislation that would expunge the records of many convicts.

The “Clean Slate” legislation would eliminate the criminal records of people once they are released from prison and have stayed crime-free for a significant period of time.

Advocates suggest three years for misdemeanors and five years for non-violent felonies.  miamiherald.com/news/politics-government/national-politics/article223995375.html

In Las Vegas a former State Senator is seeking to eliminate minor marijuana convictions but there are challenges.

From ReviewJournal.com (Jan 04, 19):

Nevada laws do not enable prosecutors to expunge the criminal records of individuals convicted on misdemeanor marijuana charges. Individuals must petition courts on their own, which opponents … view as an “expensive, cumbersome” process.  reviewjournal.com/news/politics-and-government/clark-county/segerblom-wants-law-to-expunge-nevada-marijuana-convictions-1566059

In Massachusetts a local District Attorney is looking to control the expungement of criminal records.

From PatriotLedger.com (Dec 13, 18):

Marijuana is now legal in Massachusetts, but a past conviction for possession is still part of a person’s criminal record.

Now it’s one of the crimes the state will allow people to put behind them forever and Norfolk County District Attorney Michael Morrissey is working with court and probation workers to help people clear their record.  patriotledger.com/news/20181213/norfolk-da-looks-to-get-handle-on-expunging-criminal-records

Enlightening attitudes in Massachusetts regarding ex-offenders combined with the legalization of marijuana has pushed lawmakers to review criminal related policies.  The most powerful tool to assist ex-offenders achieve gainful employment is the act of expungement.  Once a criminal record is expunged it is no longer available to the general public and employers.  In Massachusetts it is seen as a means to clean up records with some misdemeanors and minor felonies. It is a tool designed to assist formerly convicted individuals reintegrate into society, and it is seen as a key tool to belay potential recidivism.

To help employers stay up-to-date and current with new and potential laws that effect employment screening it is wise to partner with a third-party background screening agency.  This strategy is key for employers to stay ahead of laws governing hiring practices and helps reduce the possibility of discrimination and ensures compliant policies.

One thing is certain the year 2019 will see a lot of significant changes in attitudes and policies in regards to the large portion of people in this country that have criminal records and hiring policies must keep up.

To read more about clean slate policies and the use of expungements to help ex-offenders get good jobs and put their pasts behind them forever read recent CriminalBackgroundRecords.com press release:  ‘Clean Slate’ and ‘Expungement’ Legislation May Bring Change to Background Screening, Opines CriminalBackgroundRecords.com

More and more people in the USA are taking on part time jobs that classify them as a freelancer or independent contractor.  A role that is different than a full-time employee.  Because of this difference the laws surrounding employment screening are not the same.  As more people want to be their own boss and with companies finding it more expensive to hire full-time employees and rising health care costs the Gig economy has become a huge phenomenon filled with short term deals, freelance work and the opportunity to create your own work hours.

The gig economy has become a significant avenue toward employment for a large part of the overall nationwide economy.  But what is the gig economy and how do background screening policies affect those employed individuals?

The Gig Economy is defined by Wikipedia as a labor market characterized by the prevalence of short-term contracts or freelance work as opposed to permanent jobs.  The gig economy as labelled is a relative new phenomenon in the economy insomuch that so many companies work under this business model.

From the Guardian (Dec. 06, 18):

The “gig” economy was supposed to be an opportunity for entrepreneurs to be their own boss. Everyone from Uber to Postmates, Lyft, Airbnb, Turo and Parklee have all sold themselves as platforms for freelancers and would-be entrepreneurs to work for themselves.  theguardian.com/business/2018/dec/06/is-the-gig-economy-what-it-has-been-cracked-up-to-be

Background screening in the gig economy remains a critical concern, just as it would for traditional employment.  Even though these workers are basically self-employed as contractors they still interact with the companies customers and a bad experience between a freelancer and a customer could severely damage the company.

There is a legal difference between someone being an employee and someone being an independent contractor.  Many of the platforms used in the gig economy such as Uber, Lyft, and Postmates may push for the label of independent contractor as the laws governing that title can be less stringent than “employee”. Nonetheless, background screening remains a critical tool in risk mitigation within these types of enterprises.

In the gig economy criminal history records are sometimes used as part of a complete background check but the rules governing this use is not well defined and, subsequently, results can be confusing for employers and can even lead to lawsuits.

Background checks are all about risk mitigation, and criminal history is an important part of that mitigation.  In fact one might call the use of criminal histories integral because in some cases a person’s history can be predictive of future behavior.

From Slate.com (Dec. 07, 18) discussing criminal records:

But not all criminal background records are equal, and not all criminal records are predictive of future dangerous behavior. What’s more, because gig-economy platforms like to classify their workers as independent contractors, would-be and current workers aren’t usually granted the same legal protections against discrimination as applicants or hires classified as employees. So there’s a difference between those looking to work at a grocery store or office building versus those looking to work for TaskRabbit or Amazon Flex. Given that many gig workers shift across multiple platforms, it can also be hard to discern what might be disqualifying on one platform and what isn’t on another. And just as workers with criminal records deserve to understand how past convictions might affect their opportunities, customers who use gig platforms deserve to understand how these companies decide who will greet you on the other side of an app request.  slate.com/technology/2018/12/uber-lyft-criminal-background-checks-gig-economy.html

Until laws governing background screening become employment specific to the gig economy, business owners should stay current with existing laws.  As the manner in which people find employment changes, the laws will eventually catch up, and hiring managers should stay fully compliant with potential and existing law by working with a third-party pre-employment background screening agency.

In the end the utilization of background checks is all about risk mitigation, and criminal history is an important part of that mitigation.  Criminal history information can be integral to the entrepreneur’s working part-time and even independently from their employer’s company that pays them because in some cases a criminal history report can be predictive of future behavior and although these independent contractors are not officially employees of the companies they work for they surely can be a huge risk to the company if something bad happens between them and a customer.

The safest approach for any company or organization in the USA that partakes in the Gig economy by hiring part-time/independent workers is too use a professional background screening agency to vet these individuals the same as they would their full-time employees.

To read more about the growing Gig Economy in the USA and what role background screening and particularly criminal background record checks will play given part-time/freelance or subcontracting is different than what a full time employee is read recent CriminalBackgroundRecords.com press release:  Criminal Records and Background Checks in the Gig Economy

Families in the USA are soaking up the remainder of the summer as retail stores stock their shelves with back to school supplies.  When the summer vacation for kids across the country ends that means back to school.  Once school begins so does after school programs like sports, theatre and other extra curricula activities.  This is why it should be paramount that all volunteers involved with after-school activities undergo a thorough and vigorous background screening including a comprehensive criminal background check.

It is believed that if all potential coaches, instructors, and related volunteers are aware of a pending background check as part of becoming an employee or volunteer that the actual background check itself will act as a barrier to entry for potential predators and malfeasant individuals.  In essence these kind of people may think twice or forgo completely their application for a full-time, part-time or volunteer position if they know that a comprehensive background check will be performed on them.

Of course conducting a thorough background screening that includes a criminal background records search and sex offender registry check should weed out the potential volunteers with past offenses that could prove harmful to the youth if committed again.  This is especially true with sex offenders that are looking to repeat their crimes.

Recent history shows that people working as volunteers can also have a history of committing crimes against children.

In Carmel, Indiana a volunteer swim coach was recently arrested for Sexual Exploitation of a Minor.  FOX59 from Indianapolis covered the story:

“An assistant swim coach at Carmel High School faces federal charges after prosecutors say he had sex with one of his athletes.

… is charged with sexual exploitation of a minor and possession of child pornography. U.S. Marshals took him into custody Tuesday. A detention hearing was set for July 10.”  ^{fox59.com/2018/07/05/carmel-assistant-swim-coach-accused-of-having-sex-with-student-athlete-faces-federal-charges/}

As school commences after-school programs will start as well and offer a broad spectrum of activities:  From athletics to art programs volunteers will be the primary engines of these activities.

As kids return to school and participate in after-school sports or arts programs thousands of volunteers will work as coaches, instructors, or a myriad of other occupations.  In order to keep at-risk populations as safe as possible, all volunteers should pass a vigorous background check.

A recent article on AZFamily.com provides some horrifying detail regarding the potential of predators interacting with children.

One in four girls and one in six boys will be sexually abused before they turn 18.

“Child sexual predators are looking for places where they have easy access to children,” … said.

And that’s just one reason she says anyone working with kids needs a background check.  ^{azfamily.com/story/36790644/who-is-coaching-your-kids}

A comprehensive background check needs to cover a variety of areas of an individual’s past.  Criminal Background History, National Criminal Records Check, Driving Record Search (if applicable), SSN Validation with Address History Trace and other relevant activities like reference checks and verifications in order to gain a full picture of an applicant.

Recently, a school district engaged a convicted felon working as a volunteer.  When parents discovered the volunteer’s past their outrage prompted concern regarding the school districts background screening policy.

From IslandPacket.com (Jun 12, 18):

They’re raising questions about the district’s system for checking the backgrounds of volunteers — which the district says was upgraded years ago after former volunteers, some with questionable backgrounds, faced legal trouble — and the level to which the schools and district investigate volunteers before allowing them to work with students.  ^{islandpacket.com/news/local/education/article212951359.html}

A best practice for any organization or institution utilizing volunteers is to conduct the most comprehensive background screening possible, as well as working with a well-qualified third-party employment screening agency.

Any after school program or activity that allows for interaction with children, an at-risk-population, must ensure that all the adults involved whether employees or volunteers undergo a proper vetting process including thorough background checks that query the national sex offender registry and criminal court conviction records.

If all such employees and volunteers that have unsupervised time with children underwent a full and comprehensive background check this could greatly reduce the chances of recidivism and may assist in protecting this at-risk segment of the US population.

To read more about why volunteers with access to children should be thoroughly background checked including a 50-State sex offender search and national criminal background check before being approved for such a position read recent CriminalBackgroundRecords.com press release:  Volunteers Should Always Pass a Vigorous Background Check; Opines CriminalBackgroundRecords.com

New laws starting in 2018 such as the passing of the California Fair Chance Act will affect pre-employment screening policies.  This new law is above and beyond previous ban-the-box laws and will change how employers conduct their hiring processes.  Not only will employers be banned from inquiring about an applicant’s criminal history they will also not be allowed to ask questions about their previous salary history.

These new changes in employment law in the state of California highlight the immediate need for Human Resource Departments to review their current employment screening procedures to ensure their hiring policies correctly reflect current law.  Even employers outside of California should take note of these changes as they could soon become adopted in other States.

On January 1, 2018 California enacted two significant laws affecting hiring and pre-employment background screening.

From the Mercury News (MercuryNews.com; Jan 01, 18):

Starting Jan. 1, employers in the state will be banned from asking job applicants about their criminal history before making a conditional offer of employment or from inquiring about applicants’ salary history.  mercurynews.com/2018/01/01/workplace-laws-in-2018-could-impact-job-seekers-parents-and-ex-offenders/

Of the many changes to law in California the elimination of the question regarding criminal history from the application as well as inquiry about salary history are significant.  Both of these changes should alert hiring managers and HR personnel to review all hiring procedures and employment screening policies including when criminal background checks can be conducted during that process.  Typically a conditional offer of employment must be in place before these types of background checks can be performed.  Paying attention to these new laws and working with a professional background screening company will help to ensure compliance with all existing and upcoming law.

California Fair Chance Act is a significant change from previous law.

From the San Francisco Chronicle (Dec. 27, 18):

Experts say the most significant new law is AB2008, the California Fair Chance Act. It prohibits public- and private-sector employers with five or more employees from seeking information about a prospective worker’s criminal history in job applications or interviews or running a criminal background check until a “conditional offer of employment” has been made. The goal is to reduce recidivism by preventing employers from rejecting ex-offenders out of hand.

The act goes further than California’s existing “ban-the-box” law, which prevents employers from asking applicants about arrest records that did not result in a conviction, juvenile offenses, expunged convictions and non-felony marijuana-possession convictions more than 2 years old. The existing law also prohibits state and local government agencies (but not companies or federal agencies) from asking applicants about criminal convictions until the agency determined that the applicant meets minimum employment qualifications.  sfchronicle.com/business/networth/article/New-state-workplace-laws-will-help-ex-cons-12458131.php

Ban the box activity has been spreading across the country over the past several years and affects a growing number of jurisdictions, both single location entities as well as multi-state companies.  And the laws vary from jurisdictions in subtle ways, such as California’s Fair Chance Act.  Laws governing the use of public records, especially criminal record reports, continue to increase in complexity.

AB-168 prohibits employers from asking about salary history.

From Lexology.com (Jan 02, 18):

AB-168 amends the California Labor Code to prohibit employers from “rely[ing] on the salary history information of an applicant for employment as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant” or “seek salary history information, including compensation and benefits, about an applicant for employment.”  lexology.com/library/detail.aspx?g=3fcf8c88-5c95-406a-958c-cb120235adac

Any significant changes in employment and labor law affects how hiring managers can go about the employment screening phase of the hiring process.  California being the most populous State in the USA has a lot of clout and recent changes to California employment law may soon impact other States.  Before being caught off guard it is wise for all employers in the country to review existing pre-employment screening policies and procedures to ensure compliance for current and potential new laws.

To read more about how new laws such as those enacted by the State of California will affect employment screening practices and the overall hiring process in the USA read recent CriminalBackgroundRecords.com press release:  New Laws in 2018 Remind Business to Review Pre-Employment Background Screening Policies; States CriminalBackgroundRecords.com

With the baby boomers aging a large portion of the US Populous is in need of caregivers.  The roles for caregivers in the home or in assisted living or in nursing homes have become critical to daily life.  Given the responsibility of watching over and caring for our at-risk populations (individuals that cannot necessarily take care of themselves, such as young children and the elderly), the selection of a caregiver must be taken with a great deal of scrutiny.

The vetting process of a caregiver is extremely important.  Whether a family decides to work with another family member, namely one outside the immediate family, or an outside service, the decision cannot be taken lightly.  However, many families are not familiar with the hiring process of employing an individual and may forgo the vetting process completely leaving their loved one with someone who may take advantage of them either by financial abuse or physical abuse.  Even families hiring a caregiver should use a professional employment screening company to properly vet the applicant before giving them access to the home or unsupervised time with the elderly.

One of the most important parts of the vetting of caregivers is a background check, with first and foremost being criminal background checks.  It is a relatively inexpensive tool that can provide invaluable information utilized in making a well-informed decision.  A thorough background check can uncover a criminal past or questionable character that may pose a significant risk to the elderly.

Caregiver background checks are valuable in at least two noteworthy key areas:

1. Verification of previous employment, references, and professional accreditation.
2. Review of all public documents primarily criminal records that may be pertinent to the hiring of a caregiver.

Understanding the details of an individual’s past provides insight into their potential future.  A professional employment screening process is designed to mitigate risk and expose red flags.

Key reports often used in a Caregiver background check include:

• Criminal History Report – Drawn from county courthouses, a criminal history report provides the most current information available on a given individual.
• Social Security Records Trace – Provides information on the county of an individual’s recent recorded residence.  This informs which county a criminal history report should be drawn from and provides verification of AKAs.
• Sexual Predator Registry – Includes a Full 50-State Sex Offender Registry Search
• DMV Report – If driving history is relevant

Without question a background check is the single most important part of the vetting process.

Care.com, one of America’s largest portals for individuals looking for work and those looking for them notes:

“A background check will look for criminal background records (felonies, misdemeanors or sex offender listings), in various places where you are believed to have lived. A more expensive check can provide them with information on your driving records, civil restraining orders, bankruptcy records and warrants.”  care.com/c/stories/2705/background-checks-how-to-handle-them/

The Children Welfare Information Gateway proclaims equally stringent requirements for background screening.

From ChildWelfare.gov:

A criminal records check refers specifically to a check of the individual’s name in State, local, or Federal law enforcement agencies’ records, including databases of records, for any history of criminal convictions. All States, the District of Columbia, and Guam require checks of State criminal records as part of the background investigation of prospective foster and adoptive parents and other caregivers. Nearly all States also require checks of national criminal records.  childwelfare.gov/pubPDFs/background.pdf#page=2&view=Who needs background checks

In the end it is extremely important for families and organizations that care for the elderly to hire caregivers only after a professional background check is performed to increase the odds of protecting the vulnerable and at-risk populous of the USA.  It is also important to note that laws and regulations governing the background screening industry can vary from state to state as well as from one jurisdiction to another.  This is why utilizing a professional third party background screening agency still remains a best practice for both families and organizations looking to protect the elderly.

To read more about how important it is for families and businesses to perform thorough background screening on all caregiver’s before giving them access to the elderly read recent CriminalBackgroundRecords.com press release:  Caregiver Background Checks

California is the latest jurisdiction to pursue what is known as Ban-the-Box legislation, an effort to remove the question of a criminal history from applications thereby, in theory, creating a level field of job opportunity.  It appears that California will be the next state to enact ban-the-box legislation and this action, once again, points to an urgent and immediate need for all hiring managers and/or HR departments to work with a well-qualified third-party pre-employment background screening agency to remain in compliance with law.

California is putting a bill forth that will make it unlawful for an employer with five or more employees to inquire about or even consider an applicant’s criminal conviction history until a conditional offer is made.  The bill is called California’s Fair Employment and Housing Act or FEHA.  They now join numerous other States that are considering such an Act as well as those that have already passed Ban-the-Box legislation.  If the California bill is passed it will require employers that have 5 or more employees to follow the new rules.  This means changing their pre-employment screening policies and procedures as to not discriminate at the beginning of the job application process as to whether or not an applicant has a criminal background record.  Only after a conditional offer is made would the employer be able to run a criminal background check on the prospective employee.

Ban-The-Box the California way clearly makes evident the abundance of evidence showing employers around the country that significant change needs to be made in regards to pre-employment background screening policies and procedures.

The effects of the new California ban-the-box legislation could be far-reaching.

From National Law Review website (Sep. 25, 17):

The bill would make it unlawful under California’s Fair Employment and Housing Act (“FEHA”) for an employer with five or more employees to inquire about or consider an applicant’s conviction history until the applicant has received a conditional offer of employment. Under the bill, an employer would be prohibited from:

Including on any employment application a question that sought disclosure of an applicant’s conviction history;

Inquiring into or considering the conviction history of the applicant, until after the employer has made a conditional offer of employment; and

Considering, distributing, or disseminating information relating to arrests that do not result in a conviction, diversion programs, or convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law. natlawreview.com/article/california-joining-ban-box-bandwagon

With every change in law HR departments and hiring managers should be reviewing pre-employment background screening policies and procedures.  The changes to California law, the most populous state in the country, could have overreaching consequences into other states.  Staying ahead of changes in law is what third-party background screening companies do and it is incumbent on HR Departments to also stay ahead of change.

The new law in California is specific as to who it will affect and who it will not.

From National Law Review website (Sep. 25, 17):

The bill does not apply to the following positions: (1) a position for which a state or local agency is otherwise required by law to conduct a conviction history background check; (2) a position with a criminal justice agency as defined by the California Penal Code; (3) a farm labor contractor as defined by the California Labor Code; and (4) a position where an employer is required by state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history.  ibid

Laws governing the use of public records, specifically criminal history records, as shown by the activity in the legislative branch in California demonstrates that change is inevitable and that means hiring procedures will need to change.  It can be overwhelming to keep up with such changes and that is why it is always a best practice for employers to work with a professional third-party employment screening company to get all the current, up-to-date and accurate background information necessary in assisting with the hiring of new employees, volunteers and contractors.

To read more about California’s new bill and the changes in employment screening policies it will require if passed into law along with the impact it could have on other US States read recent CriminalBackgroundRecords.com press release:  http://www.criminalbackgroundrecords.com/news/2017-10-19-Ban-The-Box-California-Style.html

The use of criminal background records have made headlines over the past few years during the last term of the Obama Administration.  We have seen ban-the-box legislation sweep across the country making it only possible for employers to conduct criminal background checks only when an initial offer of employment is made.  We have seen the Equal Employment Opportunity Commission (EEOC) get aggressive with multiple lawsuits against discriminatory practices during the hiring process.  They also released a guidance as to the fair, lawful and legal use of criminal records as part of the employment screening process.  All this and putting forth considerable effort trying to reform the criminal justice system.

We have seen recreational marijuana use become legal in many States.  Marijuana use in these States went from being a crime to becoming tolerated.  Some States like California actually went as far as expunging previous non-violent marijuana related criminal records from past offenders rapsheets.  However, now in 2017 the country has a new administration led by President Trump whose ambitions are drastically different than the previous administration.

Under the authority of the President Immigration and Customs Enforcement or ICE has been tasked with greater urgency in deporting illegal aliens with criminal records.

From the Washington Examiner (Feb. 12, 17):

Stephen Miller, the president’s policy director, said, “the cases that I’m familiar with…have to do with removing criminal aliens, individuals who have criminal charges or convictions against them. And that’s what’s been taking place all across the country. And the effect of that is going to be saving many American lives, American property and American safety.  washingtonexaminer.com/white-house-deporting-criminal-illegals-saves-american-lives-property/article/2614615

Criminal records can follow an individual for many years and make it difficult for a past offender to find employment and/or decent housing conditions.  With the new administration in force it seems that evidence of a criminal record for aliens living inside the country will most likely result in immediate expulsion.

To date actions by the new administration including several executive orders have been very firm and often times a challenging reversal of direction from the previous administration.

At this point in time it really is unclear if laws governing the use of criminal records will continue to expand or slow down.  What is certain is that the use of criminal background records in the employment screening arena will continue to remain a critical tool for employers and hiring agents in determining which applicants they will hire.  In the meantime it is certainly realistic to assume that pre-employment background screening and the proper use of criminal records will continue to make headlines going forward.

At the University of Wisconsin students challenged the potential use of criminal records as part of the admissions process.

From the Wisconsin State Journal (Jan 28, 17)

Members of UW-Madison’s student government on Friday criticized Chancellor Rebecca Blank’s call for officials to revisit their policy of not asking about applicants’ criminal records….Blank called Thursday for the University of Wisconsin System Board of Regents to “consider a review” of UW’s applications, which do not allow officials to ask about or consider prospective students’ prior criminal convictions.  host.madison.com/wsj/news/local/education/university/university-of-wisconsin-students-warn-against-using-criminal-records-in/article_3b0635ed-18c8-57da-b0bc-4822eaccdd42.html

It should be noted that other countries utilize criminal records much in the same manner as the United States.  For example, Argentina has strengthened criminal records laws as used in immigration.

From Fox News (Jan 31, 17):

Seeking to curb a spike in crime that remains a top concern across the country, the president of Argentina signed a decree that greatly toughens its immigration law to fast-track the deportation process and bar entry to foreigners with criminal records.  foxnews.com/world/2017/01/31/new-immigration-law-in-argentina-bans-entry-expels-foreigners-with-criminal-record.html

The United States is not alone as other countries use criminal records along the same lines we do both with employment purposes, immigration practices and other capacities. And just as in the United States, the use of criminal records for any lawful task will remain controversial.  A best practice for any company is to utilize a professional third-party background screening company in order to stay ahead of changes to law and remain in compliance with existing law.

Human resources professionals and hiring agents should pay attention to new actions by the Trump administration and if need be revise their existing background screening policies to compensate.  Additionally they should work closely with a professional background screening company to make sure their policies and procedures are legal and compliant.

To read more regarding the previous trends with the use of criminal records in the employment screening process and how the past administration’s policies may differ from the new Trump Era policies read recent CriminalBackgroundRecords.com press release:  http://www.criminalbackgroundrecords.com/news/2017-02-15-Criminal-Records-at-Home-and-Abroad-in-the-Trump-Era.html