During the past decade, increasing numbers of employers have chosen to perform criminal and financial background checks on job applicants. Today, around 93% of employers conduct background checks on at least some job applicants, and 73% conduct background checks on all applicants. Nearly one-quarter of adults in the U.S. have criminal records, and sometimes people without criminal records are wrongly flagged due to mix-ups like having a similar name to that of a convicted criminal.
In recent months, media attention has focused on employers asking job applicants for Facebook names and passwords. The state of Maryland was the first to pass a law banning employers from demanding social media passwords, and others are considering it. On the federal level, the Justice Department considers it a crime to violate the terms of service of a social media site, and asking for username and password information clearly violates Facebook’s terms of service, so employers who may have considered this step are rethinking it.
Laws and regulations concerning background checks for employment vary by state, and many new laws have been passed in recent years concerning the protection of job applicant rights. Here are five recent changes to background check laws.
1. New EEOC Enforcement Guidelines
In April, the Equal Employment Opportunity Commission (EEOC) updated its enforcement guidelines on how employers handle applicants with criminal records, with an eye toward finding a balance between workplace fairness and workplace safety. The new guidelines state that companies can be held liable if there is disparate treatment based on criminal record. For instance, if an employer rejected an African American based on criminal record, yet hired a white applicant with a comparable criminal record, the employer could be held liable.
2. California Assembly Bill 22
Governor Jerry Brown signed Assembly Bill 22 into law in October, 2011. This law prohibits most employers from obtaining consumer credit reports on applicants for hiring decisions. Some financial institutions, and applicants for certain positions are exempt from the bill. For applicants who are still subject to having their consumer credit reports pulled as part of the background check process, employers must give written notice that the credit reports will be used and must specify why the employer is obtaining the report. Six other states, Washington, Oregon, Maryland, Illinois, Hawaii, and Connecticut have similar laws.
3. Indiana HB1033
Under Indiana HB 1033, people who were charged, but not convicted of crimes, or who were convicted misdemeanors or most Class D felonies in the distant past may petition the court to restrict access to their criminal records. If the court agrees, the individual can legally answer in a pre-employment application that they have not been arrested or convicted of a felony or misdemeanor. Under the new law, some employers are prohibited from asking job applicants about sealed criminal records. Furthermore, Indiana court clerks are now prohibited from disclosing information about individuals who were not prosecuted or who had actions dismissed, were judged not to have committed an infraction, or were convicted and satisfied judgment more than five years prior. Employers pursuing access to protected information are subject to fines.
4. Illinois HB 3782
This bill amends the state’s Right to Privacy in the Workplace Act and prohibits employers from asking job applicants for their usernames or passwords to social media profiles. The bill does not prevent employers from considering information they can find on public social media profiles. Employers everywhere are urged to use due diligence when considering social media information in hiring, due to potential for discrimination allegations, and the possibility of negligent hiring lawsuits based on inadequate information found publicly online.
5. Massachusetts Criminal Offender Record Information (CORI) Overhaul
Provisions of an overhaul to Massachusetts’ Criminal Offender Record Information (CORI) took effect in May 2012. Most written job applications cannot contain questions about prior criminal convictions. There are exceptions for entities that work with vulnerable populations like senior citizens, children, or disabled people, and for those that are prohibited from hiring ex-convicts under federal or state law. Employers can, however, gain access to Massachusetts’ new online criminal history request service for a fee. Using iCORI, employers can evaluate current or prospective employees, interns, or volunteers.
Technology that makes it easier to access information on people, coupled with a tight labor market, has resulted in pre-employment background checks becoming commonplace. Earlier guidelines on background checks were written well before the internet age, and with push-back from individuals who worry about invasion of privacy, new laws and updated policies are beginning to more accurately reflect the 21st century workplace and workforce.
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