Recent changes in the use of an individual’s identifiers (date of birth, Social Security Number, etc.) on public record retrieval could have a significant impact on pre-employment background screening. Recent court and state legislative actions in California and Michigan regarding the use of personal identifying information on public records searches could greatly affect pre-employment background screening and, subsequently, a best practice remains to work with a well-qualified third-part background screening agency in order to remain compliant with law.

With California restricting the use of personal information identifiers from public record searches via court action and Michigan essentially doing the same thing through legislative action, the criteria used in retrieving public records could be irrevocably changed.

The use of public records and the accurate retrieval of such are under fire and could alter how public records are pulled in Michigan and California, but, potentially, across the country as well; and a best practice remains to work with a well-qualified third-party pre-employment background screening agency in order remain fully compliant with laws governing the use of public records.

Earlier in 2021 the Supreme Court of Riverside County ruled to restrict the use of personal identifier information for retrieving public records. (All of Us or None of Us, Riverside Chapter v. Hamrick, Cal. S.Ct., No. 269654) This move will significantly impact the use of public records as part of pre-employment background screening.

From JDSupra.com on July 21, 2021 discussing initial findings from the court:

The case centers around a California Rule of Court which specifies how electronic trial court records are made available to the public. Rule 2.503 (b) requires that the trial courts that maintain an electronic index must provide remote electronic access to “indexes in all cases” to the extent feasible to do so. Rule 2.503 also specifies what must be excluded from such indexes, including two pieces of information at issue in the case, date of birth and driver’s license number. ^{jdsupra.com/legalnews/california-court-of-appeal-ruling-could-4430508/}

The impact of the court case was immediate with several counties in California limiting the use of identifiers in public record retrieval.

On September 8, 2021 JDSupra.com reported that on September 1, 2021 the California State Supreme Court declined to review the lower courts decision. ^{jdsupra.com/legalnews/another-privacy-headache-for-california-7902509/} Further noted in the article, the impact will result in greater challenges for conducting background screening.

From JDSupra.com on September 8, 2021:

Companies that hire employees and engage independent contractors in California should brace for a significant slowdown in background checks that include criminal record searches in California state courts.1 This will result from the court of appeal’s opinion in All of Us or None v. Hamrick, which prohibited the Riverside Superior Court from allowing its electronic criminal case index to be searched using an individual’s known date of birth or driver’s license number. ^ibid

Additionally a similar action recently took place in Michigan…

From thePBSA.com on June 30, 2021:

…the Michigan Supreme Court issued an order that delays implementation of their rule which would make dates of birth unavailable. The implementation date has been changed from July 1, 2021 until January 1, 2022… ^{thepbsa.org/government-relations/michigan-dob-redaction-information/}

With similar actions in two states, often considered to be leaders in governing background screening, the potential for the elimination of certain personal information identifiers in other states remains high. A subsequent best practice is to work with a well-qualified third-party pre-employment background screening agency to remain compliant with law.

It is clear that at this point in time ban-the-box laws are not going away as new related laws get passed and existing laws get amended. Hiring managers and employers need to review new and existing ban-the-box laws that fall within their jurisdiction and such laws certainly will affect employment screening policies going forward.

Ban the Box legislation continues to expand across the country but challenges to pre-employment vetting remain as existing laws get modified or get challenged over legality or jurisdiction. Ban the Box isn’t going away and will continue to expand across the country, yet it should be noted that when laws change or get adapted hiring managers and HR departments should take immediate note and continue a best practice of working with a well-qualified third-party pre-employment screening agency in order to remain compliant with laws governing the use of public records in hiring.

Pennsylvania recently updated Ban the Box laws, further restricting employers use of public records, and represents just one of many challenges employers face in maintaining current and compliant hiring policies. Working with a well-qualified third-party pre-employment background screening agency remains a best practice in staying current with rapidly changing Ban the Box legislation.

Changes to current employment and Ban the Box laws in Pennsylvania highlight how these laws can evolve and potentially create confusion for hiring managers and HR Departments.

From the National Law Review on April 9, 2021:

Changes to Philadelphia law will further restrict employers’ use and reliance on applicant, current employee, and independent contractor background information and affect the employee application and employee management process. ^{natlawreview.com/article/philadelphia-enacts-key-changes-to-ban-box-credit-screening-ordinances}

One of the more interesting changes to the law relates to current employees.

Again, from the National Law Review on April 9, 2021:

Bill No. 200479 amends the FCRSS to make it applicable not only to the application or transfer process, but to the use of any current employee criminal histories. The law’s restrictions and procedural requirements now apply also to current employees, as well as applicants in Philadelphia. Moreover, independent contractors and gig workers are afforded the same protections as full-time or part-time employees or applicants. ^ibid.

In Iowa such a challenge to Ban the Box laws occurred, something hiring managers should be aware of and monitor.

From Courthouse News on April 9, 2021:

An Iowa city’s ordinance that initially bars employers from checking job applicants’ criminal background records should be struck down because it conflicts with state and federal law, an Iowa business group told the state’s high court… ^{courthousenews.com/iowa-supreme-court-urged-to-strike-down-ban-the-box-ordinance/}

Hiring managers and HR Departments should always take note of challenges or reform to an existing law. These changes could greatly affect the ability to use certain records, such as criminal history reports, as part of the pre-employment process. A best practice is to work with a well-qualified third-party pre-employment background screening agency.

Even though some Ban the Box laws can be challenged based on legality and/or jurisdiction it is important to note their legitimacy and for employers it is important to abide by these laws when it comes to the use of criminal background checks in the hiring process. When and where an employer or hiring manager can perform a criminal background record check in the employment screening process must be understood and partnering with a professional employment screening company is always a best practice.

To read more about why new and existing ban-the-box laws are causing confusion amongst employers and hiring managers and why working with a professional employment screening company can help with understanding such laws and how to remain compliant with the use of criminal background checks in the hiring process read recent CriminalBackgroundRecords.com press release: Change to Ban the Box Laws Can Lead to Confusion for Hiring Managers and HR Departments

As Marijuana laws in the USA from State to State keep changing making medical and even recreational use legal it is changing pre-employment background screening. It is useless testing new potential hires for the drug if in their State it is legal to use it. Marijuana criminality remains a hot topic especially since Congress took up the matter of de-scheduling the drug as a Schedule 1 narcotic, a level of criminality that is shared with methamphetamine and heroin. With Congress looking at de-scheduling marijuana, combined with additional states voting to legalize recreational marijuana, the use of the drug and hiring will surely continue to be hot button items for HR Departments and hiring managers.

In 2020 the outgoing 116th Congress took up the issue of de-scheduling marijuana as a Schedule 1 drug in the House of Representatives and with the change in leadership the topic will most certainly return to the agenda of the 117th Congress. With control of Congress in different hands the conversation about de-scheduling marijuana should force all hiring managers and HR Departments to immediately plan for such a change, and a best practice remains to work with a well-qualified third-party pre-employment agency in order to remain compliant with existing and potential law.

Across the country voters are approving new legislation allowing for the lawful use of recreational marijuana. Often time’s steps are taken, at the state level, to expunge previous marijuana-related convictions.

Starting on January 1, 2021 Illinois will expunge previous marijuana convictions.

From the Chicago Tribune on January 5, 2021:

The first set of cases, dating from Jan. 1, 2013 to June 25, 2019, were to be expunged by Jan. 1. Cases dating from 2000 through 2012 must be expunged by Jan. 1, 2023. Offenses before 2000 must be expunged by the start of 2025, under the state law. In all, Will County has more than 11,000 cases eligible for automatic expungement under state law, Glasgow said.

Wiping records clear of a low-level drug offense can help open doors for jobs and other opportunities, attorneys said. ^{chicagotribune.com/marijuana/ct-sta-will-county-marijuana-expungement-st-0106-20210105-hb5lpyotfbfp7nrhcppgzmrkc4-story.html}

A federal level change to decriminalize the use and possession of marijuana would greatly reduce the potential of confusion with the use of criminal history reports in employment screening. It is counterproductive to convict people in this country of marijuana related offenses when most of the country doesn’t think it is a crime at all to use the drug for medical or recreational purposes. It is a futile effort that will only clutter our correctional facilities, cost us a lot of money and remove people from the work force further hurting our economy.

There are predictions that the new Congress will take up the issue of de-scheduling marijuana.

From Marijuana Moment on January 6, 2021:

The Senate will vote to pass a bill to federally legalize marijuana within the next two years.

That’s according to the top Democratic lawmaker who is expected to be installed as majority leader following his party’s projected clean sweep in this week’s two Georgia runoff elections that will give them control of the chamber.

Coupled with Joe Biden’s presidential win, the new situation on Capitol Hill means that federal cannabis policy change is in the cards for the 117th Congress. While the former vice president has declined to embrace adult-use legalization, he’s pledged to adopt modest reforms such as marijuana decriminalization and expunging past records. ^{marijuanamoment.net/what-the-new-democratic-controlled-senate-means-for-federal-marijuana-legalization-in-2021/}

With the new Presidential Administration and with Democrats having control of the Senate and the House this year will surely be one of big changes. Criminal justice reform will certainly be in the spotlight and with the potential of marijuana decriminalization combined with expungements Hiring Managers and/or HR Departments should pay close attention and work with a professional employment screening agency in order to remain compliant with existing and potential laws governing the hiring process.

By some jurisdictions in this country already expunging marijuana related criminal background records the effects should soon be seen. By freeing these individuals from the stigma of having a criminal record it will enable them to get a fresh start and a job and start contributing positively to the USA and its economy. At this point in time it is the beneficial path to take both for those with marijuana related conviction records and the country as a whole.

To read more about the decriminalization of marijuana related offenses and why all criminal conviction records of individuals in the USA that were just for using or possessing the drug should be expunged immediately read recent CriminalBackgroundRecords.com press release: Marijuana May be the Big Issue in Pre Employment Background Screening in 2021; Opines CriminalBackgroundRecords.com

California gets more explicit about the 2018 Fair Chance Act that aimed to help those with previous criminal background records get a better chance at getting a job. Recent amendments went into effect in October that will have a big impact on most employers in the State regarding the fair and proper use of criminal background checks in the employment screening process.

Recently California’s Department of Fair Employment and Housing (DFEH) issued a new guidance clarifying the states Fair Chance Act, as well as indicating a willingness to enforce updated policy. The action in California that highlights the potential of significant change to laws governing the use of Criminal History Records, and Hiring Managers and HR Departments across the country should take immediate note. Laws governing pre-employment background screening face potential change and a best practice remains to work with a well-qualified third-party pre-employment background screening agency in order to remain compliant with existing and potential law.

The new guidance issued by DFEH is designed to clarify protections for workers with a criminal background record.

From JDSupra.com on October 15, 2020:

Since its implementation on January 1, 2018, The Fair Chance Act has been a source of questions for California employers. Also referred to as “banning the box,” Government Code section 12952 makes it illegal for most employers in California to ask about the criminal record of job applicants before making a conditional job offer.

The Department of Fair Employment and Housing (“DFEH”) recently amended the regulations implementing the law, with an effective date of October 1, 2020

^{jdsupra.com/legalnews/dfeh-updates-ban-the-box-regulations-16361/}

Modification and clarification guidance, such as the one issued in California by DFEH, can be common across the country thus creating an ongoing change to law. Hiring managers are challenged with remaining compliant with existing law.

From Forbes.com on November 3, 2020 in discussing California’s new guidance.

California’s Fair Chance Act is one of more than three dozen ban the box measures that restrict a private employer’s inquiry in a candidate’s criminal history. The DFEH’s new guidance reminds employers that they must comply with all applicable laws, including the notice and individualized assessment steps required by the Fair Chance Act, as well as the Act’s restrictions on the consideration of specific criminal history. FAQs also clarify that employers must comply with the Act for individuals hired before their criminal background check is completed. Employers in Los Angeles and San Francisco must also comply with additional notice and assessment requirements beyond those promulgated by California’s Fair Chance Act. ^{forbes.com/sites/alonzomartinez/2020/11/03/new-guidance-clarifies-protections-for-california-workers-with-criminal-records/?sh=89eaed76280f}

Knowing that change is a constant, especially in regards to the legal and lawful use of criminal history reports, a best practice remains for hiring managers and HR departments to work with a well-qualified third-party pre-employment background screening agency in order to remain compliant with law.

As ban-the-box and similar laws in big States like California take effect, the whole country should be evaluating the efficacy of such laws and whether or not they want to participate in such a movement.

To learn more about why California is getting more serious regarding the compliance of their Fair Chance Act and why more specific guidance and FAQ’s have been created to help employers clearly understand their responsibilities read recent CriminalBackgroundRecords.com press release: California’s New Guidance Highlights Potential Change Affecting Hiring and Criminal Records

Despite massive layoffs across a variety of industries, essential workers, such as those in retail, are being hired, and as hiring continues so to should thorough pre-employment background screening. As the Covid pandemic continues to paralyze economies all over the world; in the USA it remains very important that employers still employ a thorough vetting process to help weed out malfeasant individuals during the hiring process. Now is a critical time to remain diligent in all hiring practices and policies, and, despite the economic downturn due to Covid-19, hiring managers and HR Departments must continue to thoroughly background check all new employees; a subsequent best practice remains working with a well-qualified third-party pre-employment background screening agency.

Across the country companies continue to hire new employees during the Covid pandemic and pre-employment background screening should be a part of the hiring process. Now, more than ever, hiring managers and HR departments must remain diligent in hiring practices and pre-employment background screening agencies should be utilized to provide legally compliant, accurate, and up-to-date information.

During the current economic upheaval related to the Covid pandemic, it is important to note that the laws governing pre-employment background screening have not been put on moratorium or relaxed. All laws that govern the use of public records (such as criminal background records) as related to background screening, remain fully intact. The laws, policies and regulations governing pre-employment background screening have not changed during the pandemic.

From Lexology.com (Aug. 20, 20):

Don’t ignore federal and state background check laws while waiting for the dust to settle on this pandemic! Here is what employers need to know about these requirements.

Generally speaking, before an employer may obtain a background check (also called a “consumer report”) from a third-party background check provider (also called a “consumer reporting agency”), the employer must make a clear and conspicuous written disclosure to the individual that a background check may be done. In fact, the document must consist “solely” of the disclosure… The candidate or employee must also provide written consent for the employer to obtain a background check report. Different requirements exist for “investigative consumer reports” (those based on interviews of the individual’s friends, neighbors and associates), and for employers regulated by the Department of Transportation (depending on their hiring practices). ^{lexology.com/library/detail.aspx?g=159821ee-3fa1-4344-89c1-ebd125262953}

And the critical and important reasons for background screening applicants has not changed either.

From Forbes.com (Apr. 16, 20):

Employers have a legal duty to ensure that a prospective worker does not present a danger to the organization or its clients. Negligent hiring occurs when employers fail to act reasonably when hiring an individual, and that individual subsequently harms someone else. Once a candidate is hired, employers are responsible for supervising their employees and ensuring that a worker’s retention does not present probable harm to the organization or its clients. Employers who fall below their duty of care and negligently hire or retain a worker could be liable for that worker’s bad acts. ^{forbes.com/sites/alonzomartinez/2020/04/16/covid-19-what-should-employers-consider-as-they-adapt-their-background-screening-program/#32d657ccae0f}

In short the message about background screening is that nothing has changed as far as laws, policies, and procedures during Covid-19, and that is the importance of the message coming out now.

It is also important to note that employers still need written consent from a potential hire before conducting background checks on the individual. This letter is called an “employee release form” and if investigative consumer reports are to be had as well there also needs to be a clear explanation of these kinds of reports being conducted as well. In addition an employer also has to be cognizant of other laws regarding hiring practices like ban-the-box laws that may apply to them and may limit when in the hiring process certain background checks like criminal background checks can be conducted. All in all it is still a best practice for employers to utilize a professional background screening company to provide background check reports in a compliant and legal manner.

To learn more about why performing in-depth employment screening on prospective hires is still very important even in a world under the Covid-19 pandemic read recent CriminalBackgroundRecords.com press release: During Covid-19 Background Screening Should Continue Without Change; States CriminalBackgroundRecords.com

With COVID-19 consuming the news and most media outlets it’s time to visit where we are with the Ban-the-Box movement midway through the year. When it comes to vetting potential employees for positions within companies and organizations it is important to know if Ban-the-Box laws affects how you can use criminal report information in the hiring process.

In the world of pre-employment background screening new Ban-the-Box laws dominated headlines, but with the outbreak of Covid 19, Ban-the-Box has taken a bit of a backseat. But laws continue to change anyway.

In 1998 Hawaii became the first state to ban-the-box, a law that essentially “bans” the question of criminal history on an employment application. Since that first law multiple states and municipalities have followed suit. With every passing year ban-the-box laws are enacted with the goal of assisting those with criminal background records in attaining gainful employment.

Ban-the-box laws are often complex and may cover every detail.

In recent months several jurisdictions have moved to close loopholes in respective ban-the-box laws or modify the law in general in order to cover a broader cross section of individuals seeking employment.

In Minnesota, one of the first states to follow Hawaii with ban-the-box legislation, is working on updating their law and close a loophole that still required the criminal history on some state boards and commissions.

From MinnPost.com on June 16, 2020:

In recent years, even as Minnesota was considered a pioneer in ending the practice of asking job seekers about their criminal histories, it somehow was still posing the question to applicants for one class of job: appointments to state boards and commissions. ^{minnpost.com/state-government/2020/06/special-session-gives-lawmakers-second-shot-at-eliminating-minnesotas-ban-the-box-loophole/}

Pennsylvania legislation is working with the governor of that state to correct licensing policies to be more inclusive of individuals with criminal records.

From NorthCentralPA.com from July 2, 2020:

Building on criminal justice reforms and fulfilling a recommendation to modernize job licensing, Governor Tom Wolf signed Senate Bill 637, which removes outdated licensing barriers so skilled workers with criminal records can get a second chance and start good careers.

The governor has advocated for sweeping changes to the licensing process for years. ^{northcentralpa.com/news/local/bipartisan-bill-removes-barriers-for-people-with-criminal-convictions-to-find-employment/article_9fc60b70-bbd0-11ea-bbf1-a79b8c1b9d00.html}

A bigger move is currently being worked on at the federal level by Congressman David Trone (D-Md) and Congresswoman Maxine Waters (D-Calif), one that would Ban-the-Box across the country.

From MarylandMatters.org from June 12, 2020:

U.S. Rep. David J. Trone (D-Md.) has introduced a bill that would remove the requirement to inform employers of a job applicant’s previous criminal history.

The Workforce Justice Act, introduced by Trone and House Financial Services Committee Chairwoman Maxine Waters (D-Calif.), requires states to implement “ban the box” policies that prohibit private employers from asking about the criminal history of applicants before an offer of employment.

The aim is to remove the stigma of individuals with criminal records and provide them a fair chance to compete in the job market. Seventy-five percent of formerly incarcerated individuals remain unemployed after one year of release. ^{marylandmatters.org/blog/trone-introduces-ban-the-box-legislation-with-maxine-waters/}

As Minnesota aims to achieve an all-encompassing Ban-the-Box law other States and Jurisdictions are working on their own versions of the law. Also in Congress Representatives David Trone and Maxine Waters are working on a Ban-the-Box bill that would be a Federal law effecting the whole country. Amongst all this commotion with such laws in this country and all the possible changes that could happen; it is still a best bet for employers to partner with a professional employment screening agency to help ensure their employee vetting process is compliant with all relevant law effecting the hiring process and when if ever in that process they can use a person’s criminal background record as part of their decision making process.

To learn more about why the ban-the-box movement continues even amongst a world dealing with the COVID19 pandemic and why removing the question of criminal history from employment applications can greatly assist those with a criminal past achieve gainful employment and why this is good for society as a whole read recent TenantScreeningUSA.com press release: Mid-Year Check In on Ban-the-Box

Phase one of the return to normalcy has begun and each state and county seemingly have differing guidance and regulations regarding the return to work. At this time employers and employees need to be cautious in their efforts of opening up their businesses and conducting proper behavior while at work which could include wearing a mask and other preventive methods. Additionally on several levels, employers need to take special care when employees return to the workplace.

Many returning to work are excited to get out of the house but still have to stay within the guidelines of social distancing and wearing the appropriate PPE (Personal Protective Equipment).

Pre-employment background screening has many challenges without a pandemic or stay-at-home work orders. While it may appear that there are no jobs available in the workplace many employers are beginning to ramp back up. For the near future companies will have to work under stringent guidelines in order to keep employees safe. The same holds true during the hiring process.

Typical job interviews are managed face-to-face. But with COVID related safety protocols in place the hiring process has changed. Job interviews are now handled via Zoom and/or exclusively by phone. For many companies across the country the on-boarding process is managed the same way.

Pre-employment background screening has faced its own challenges. During the initial phases of the shutdown many county courts were closed and criminal court records were not updated on a regular basis. Many state and county employees worked from their homes during this time and did not always have the ability to update court records. And, more importantly, many courts were closed entirely, or worked on a limited basis.

As county courts begin to reopen there will be a deluge of delayed court proceedings. Records will be updated but certainly there will be delays in the process. In order to maintain best practices hiring managers and HR departments should work with a well-qualified third-party pre-employment background screening agency in order to remain up to date with court closures, as well as maintaining access to those critical court documents required to fully vet a candidate.

A greater challenge for an employer may be with the return to the physical workplace.

From JDSupra.com (May 20, 20):

Despite the best of intentions to comply with the myriad of laws, orders and recommendations and to “do right” by employees while dealing with the current pandemic and recession, employers remain vulnerable to a whole host of potential COVID-19-related claims. Ever-changing guidance and return-to-work orders complicate the issues. Keeping abreast of the actual and potential legal theories being raised is key to assessing potential COVID-19-related litigation risk. ^{jdsupra.com/legalnews/top-five-covid-19-litigation-risks-for-34262/}

As the country begins to open up new sectors of the economy that were hit the hardest by the pandemic they must do so with great care and caution as a resurgence in COVID19 cases could put us right back to where we were. Administering proper hiring practices through the use of an employment screening company is still a best practice.

Additionally, to further add to the complexity of the situation employers may be faced with whistleblowers, as related to COVID19 and the return to work policies.

From Law360.com (May 26, 20):

Scores of COVID-19-related whistleblower retaliation complaints have recently been lodged with the Occupational Safety and Health Administration and similar complaints are being filed in federal and state courts. This is the tip of the iceberg. Such claims are based on several legal theories grounded in alleged retribution against employees for voicing health and safety concerns and requesting leave or accommodations. ^{law360.com/articles/1274746}

The challenges employers are facing now and will continue to face for the next several months are significant. One way to alleviate some of the stress of returning to the workplace is to work with a third-party pre-employment background screening agency.

To read more about the challenges the country is facing due to the re-opening of parts of our economy and why using a professional employment screening company can help employers navigate through some of these issues read recent CriminalBackgroundRecords.com press release: COVID-19 and Return to Work

Without question COVID 19 has brought forth devastating new realities. Beyond social distancing and flattening the curve, millions have been put out of work via layoff and furlough. Some companies have closed permanently and still others are teetering on the brink. However, individuals working in so-called essential positions are still working, either on the front line or at home.

Despite so many layoffs positions are still available and need to be filled. Many of these positions are with at-risk populations and, subsequently, should still require a vigorous pre-employment background check conducted by a well-qualified third-party background screening agency. Even still employment screening may become challenging.

From SHRM post on April 7, 2020:

Employment background screening has been disrupted as employers adapt to the COVID-19 pandemic. In some cases, screenings have been put on hold because courthouses and schools are closed, blocking access to records. In addition, uncertainty about deteriorating business conditions has caused some employers to pull back on hiring. ^{shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/employment-screening-challenges-due-covid19-coronavirus.aspx}

Despite challenges, at-risk populations need to be protected. Caregivers, technicians, helpers, and related roles need to be thoroughly vetted in order to protect at-risk individuals. But, admittedly, screening can be a challenge in a lockdown environment.

Many of the workers that managed county court records have been furloughed or work remotely. And with Courts shut down in many parts of the country record maintenance becomes difficult. Current electronic records may not be the most accurate and court researchers may not have access to hand pulled records.

Again, from SHRM post on April 7, 2020:

Completing screens today has hit a few roadblocks, as well. “The fact that there are court closures and people are working remotely has become a huge challenge for everyone involved in screening employees,” said Pamela Devata, a partner in the Chicago office of Seyfarth Shaw.

Court closures, while intended to protect public safety, present a practical problem. “Some of the few industries actively hiring during this time are industries working directly with vulnerable persons—industries like health care, transportation, and food or grocery delivery—where background checks are a critical safety step in the hiring process,” said Melissa Sorenson, executive director for the Professional Background Screening Association (PBSA). ^ibid

One example of the challenges with pre-employment background screening during COVID 19 occurred with a woman in Oakland, CA.

From San Jose’s Mercury News on April 8, 2020:

Whitney Merchant had been looking for a new job since she left AC Transit late last year. Despite the bleak economic conditions caused by COVID-19, she finally landed a position with a major health care company on their coronavirus communications team.

But Merchant hasn’t been able to start work because her new employer can’t complete a standard background check in two Bay Area counties where courthouses have shut down. ^{mercurynews.com/2020/04/08/coronavirus-amid-bleak-employment-picture-oakland-woman-got-a-job-but-cant-start-due-to-courthouse-closures/}

A best practice during good times and times of challenge, such as COVID19, is to work with a third-party pre-employment background screening agency especially as laws governing hiring practices and jobs in general can change quickly in challenging environments.

To read more about the challenges facing the economy and hiring practices due to COVID-19 and why courts that have shut down can create huge problems in background screening efforts read recent CriminalBackgroundRecords.com press release: Hiring Challenges During Times of COVID 19

Many employers don’t perform a thorough pre-employment background check as many don’t perform reference checks as part of a complete employment screening program.  Criminal background checks and social security validation don’t always give a complete picture of a potential employee.  Reference checks completes the background screening process by validating certain information provided on an employment application.

Professional reference checks include previous employer verification, education verification, licenses and certifications verifications and also personal and professional reference checks.  Additionally other information can be verified as well such as military service records.

Reference checks are a critical part of a pre-employment background check, but sometimes they are forgotten or overlooked or not taken as seriously as one might expect.

Don’t forget about Reference Checks…

Reference checks are a critical component in background screening, one that is vital in verifying information provided by applicants.  Sometimes certain kinds of reference checks can take days to complete as the person needed for the reference check may not be readily available.  However, when making a long-term decision such as hiring someone it is worth the wait to acquire all the information necessary before making a permanent hiring decision.

From theBalanceCareers.com (Apr. 17, 19):

Many employers check references as part of the hiring process. A reference check is when an employer contacts a job applicant’s previous employers, schools, colleges, and other sources to learn more about his or her employment history, educational background, and qualifications for a job.  ^{thebalancecareers.com/what-is-a-reference-check-2062974}

But what is referenced in a reference check?

Typically, a reference check will review and verify information provided on an application.  There are several types of reference checks, depending on the type of information required.

Education Reference – Degrees and certifications can be reviewed for accuracy and validity.  There are on-line databases that can provide reference on education and colleges and universities will provide this information was well.

Employment Reference – An employment reference check could be as simple as verifying dates of employment and salary, as permitted by law, but could also include a reference from a manager or colleague.

Trade Association Reference – In some cases an employer may look to an applicant’s associations with Trade organizations or societies as may be related to a specific job or role.

The laws governing reference checks are tricky and often different from jurisdiction to jurisdiction.  A best practice remains for employers to work with a well-qualified third-party pre-employment background screening agency in order to stay compliant with law.

One area of a reference check that can be troubling to candidates is called a backdoor reference check or informal background check.

From the blog site Business2Community.com (Apr. 17, 19):

However, an informal reference check is done through personal contacts in the industry. This is the one that’s done on the Q.T. and cannot be controlled or restricted. Here one’s reputation in the industry is what is important. Building such a reputation is a slow, deliberate, and often challenging process. Ruining it can be fast–and difficult to recover.  ^{business2community.com/human-resources/are-reference-checks-scaring-you-02190965}

While informal reference checks will always happen, there are laws in place that protect applicants from defamation of character.

As always a best practice remains that employers work with a well-qualified third-party background screening agency in order to stay fully compliant.  It is important to note that laws governing references can vary from state to state.

As with any part of the pre-employment background screening process, a reference check, in most cases, must be allowed or given permission by the applicant.  Generally, an applicant will sign a release form which will allow for HR or a third-party background screening agency to conduct a reference check.  Explicit permission must be granted by the potential employee/applicant in order to use an “investigative consumer report” which may include information about the character of the person, general reputation, personal characteristics and mode of living.  This information may be obtained by interviews from people acquainted with the person being investigated.

To read more about why reference checks are such an integral part of a complete and thorough pre-employment background check and why waiting a few days or so to get all the necessary reports and reference check results is worth it read recent CriminalBackgroundRecords.com press release:  But What About Reference Checks as a Part of Pre-Employment Background Screening

In recent years the United States economy has been booming and the unemployment rate has dropped significantly.  The result of this situation has turned into a shortage of available employees for open positions across the country.  While hiring qualified candidates for certain positions has become increasingly more difficult that does not mean that employers should become lax in their employment screening efforts.

The situation is so prevalent that the term “employee ghosting” has become a common term used when a potential employee gets an interview or even gets hired for a job and then never shows up for work.

Another factor is Ban-the-Box legislation that prevents employers in a certain jurisdiction, State etc. from asking a job applicant if they have a criminal background record.  It is clear that with a booming economy (leaving employers with smaller applicant pools) and not being able to ask about criminal history until an initial offer is made is helping people like ex-cons find gainful employment which may lead to a reduction in recidivism and give many US citizens the opportunity they need to live a productive and meaningful life.

For the last several years the economy in the United States has continued its expansion and, subsequently, the unemployment rate continues to drop.

The effects of low unemployment have been felt across the country.

In Colorado the labor shortage has had wide-ranging affects on business and business owners.

From the Coloradoan (Aug 11, 2018):

A decade ago, L&L Acoustical averaged about 60 jobs a month.

Today, the drywall company completes 35 to 40 jobs, not because the work is shriveling up — quite the opposite. There’s enough work to do 60 to 70 jobs in Fort Collins’ robust housing climate, co-owner Gery Lockman said.

While work is plentiful, the workers are not.  ^{coloradoan.com/story/money/2018/08/11/colorado-labor-shortage-worsens-fort-collins-housing-woes/928718002/}

Another phenomenon related to plentiful employment is something called “ghosting.”

From Jacksonville Florida’s NBC affiliate, News4Jax (Jul 26, 18):

You’ve probably heard of ghosting — where people go out on a date and never hear from that person again. Well, it’s something that’s become more common in the professional world.

People are landing an interview or a job and then turn into a no-show.

Business owners and staffing agencies say they are dealing with “employee ghosting” now more than ever before.  ^{news4jax.com/news/employee-ghosting-spooking-business-owners}

But what does it all mean in regards to employment background screening and Ban-the-Box?

With plentiful employment opportunities employers are scrambling to find enough employees to fill open positions.  In some cases employers are willing to take just about any qualified candidate, regardless of past, and are willing to review or change their employment criteria as it relates to pre-employment background screening.

From City-Journal.org (Aug 08, 18):

Progressives … have pushed for regulations such as “ban the box,” which would prohibit employers from asking about criminal history records on an initial job application. But it’s the economy, not federal mandates, that is forcing employers to give ex-offenders a second chance, so critical to reducing recidivism and helping them rebuild their lives.  ^{city-journal.org/html/long-term-joblessness-16097.html}

It is certainly the case that some employers have altered pre-employment background screening policies in order to fill open positions but employers should remain diligent in hiring policy.  A best practice remains to work with a well-qualified third party pre-employment background screening agency.

Ban-the-box efforts are not decreasing despite the robust economy.

Kansas Governor Jeff Colyer “Banned-the-box” via legislation that took effect in June 2018.

From a www.KansasCity.com opinion piece (May 15, 18):

With an executive order signed May 2, Kansas Gov. Jeff Colyer “banned the box” for people who apply for executive branch jobs with the state. Ban-the-box rulings forbid employers from asking a prospective employee about prior criminal conviction records on the initial job application. These laws are aimed at delaying the point in the hiring process when an employer can ask about criminal history. Proponents believe this practice helps balance the inequities convicted felons face when they attempt to re-enter the workforce.

Thirty-one states have passed similar laws. For private employers in Kansas City, ban the box takes effect June 9, following an ordinance the City Council passed in February.  ^{kansascity.com/opinion/editorials/article211206864.html}

Low unemployment is always a good thing, but employers should remain diligent in hiring practices.  Working with a background screening agency remains a best practice.  Even with smaller applicant pools and ban-the-box laws utilizing a professional employment screening company will help keep employers compliant while giving them the reports and information needed to make a sound decision regarding hiring someone.

To read more about why the USA’s booming economy is helping ban-the-box initiatives and helping unemployment rates read recent CriminalBackgroundRecords.com press release:  Booming Economy Helps “Ban-the-Box”