With a new year comes new trends and the background screening industry is no exception. Don’t jump in to the new year confused. Here are the hottest topics in the industry and what employers should be aware of for 2019!
Marijuana
According to the National Cannabis Industry Association there are currently 11 states that have legalized recreational marijuana use and 22 states that have legalized medical marijuana use. However, the Federal Government still classifies marijuana as a Schedule I drug and is illegal. With the increase of states legalizing marijuana use regardless of the reason, this creates muddy water for employers. Due to the legalization in some states, the current trend in lawsuits is against employers who violate a disability act. The federal American Disabilities Act (ADA) does not make exceptions regarding the use of medical marijuana, however state’s disability lawsuits are finding in favor of a violation.
In 2017, the Massachusetts Supreme Court held in Barbuto v. Advantage Sales & Marketing that a worker could bring suit against her employer for disability discrimination after she was fired for a positive marijuana drug test. The Massachusetts medical marijuana law states that patients cannot be denied any right or privilege because of their medical marijuana use, and the state’s disability law gives employees the right to a reasonable accommodation.
More Millennial’s = More Technology
Millennial’s grew up in an electronics-filled and socially-networked world which spills over into their search for the perfect job. As the world grows more technologically advanced, Millennial’s are looking for employers that have stepped up their game in how they attract new applicants. Millennial’s want to do everything on their mobile devices all while having a seamless experience from the time of application (Applicant Submission/ ATS) to the on-boarding processing that offers flexibility and convenience.
Fair Credit Reporting Act (FCRA)
The FCRA applies to any business that uses a consumer report for employment purposes. Consumer reports may include information related to criminal background checks, drug tests, driving records, employment history, credit checks, etc. when conducted by a third party. Simply stated if a company obtains a consumer report about a job applicant or uses a consumer report to terminate an employee, then the FCRA is implicated. If these situations apply to you, then now is the time to reexamine your compliance with the FCRA; if not, be forewarned that violations of the FCRA have led to class action settlements that have cost employers millions of dollars.
The new wave of class action lawsuits are based largely on technical violations of the Fair Credit Reporting Act (FCRA); failure to provide a stand-alone Disclosure or Authorization or failure to follow the correct Pre-Adverse/ Adverse Action notice requirements.
In September of 2018, there was a new page added to the Summary of Rights which explains to applicants how to initiate a free credit report freeze. Get the updated form here.
Ban the Box and Salary History Bans
Ban the Box is not new to the background screening industry but be prepared for more change. As of now, 33 states and over 150 cities and counties have adopted what is widely known as “Ban the Box” so that employers consider a job candidate’s qualifications first—without the stigma of a conviction or arrest record.
However, salary History Bans are new to the game, but on the rise and aimed at ending the cycle of pay discrimination. State and local governments are increasingly adopting laws and regulations that prohibit employers from requesting salary history information from job applicants. Always check with your local and state laws for updates.
The laws regarding background checks can change at any moment and it is important to be aware of those changes. If you have any questions, do not hesitate to reach out!