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Background Check Restrictions

Anyone who works in human resources knows laws and regulations surrounding background checks change constantly. Compliance is vital to protect your company from potential legal action – as well as a blow to your reputation. In late 2021 and early 2022, several new laws and regulations went into effect that will have a major impact on standard background check procedures. 

Some of the recent changes reflect evolving societal views. Ban-the-box laws are becoming more commonplace to give those with a criminal history a second chance. As marijuana becomes legal for recreational purposes in more states and cities, there are stricter rules about pre-employment drug testing.  Regardless of your personal views on the subject, compliance is vital to keep your company safe from litigation. 

Below, we will go over some of the most notable changes in background check restrictions coming in 2022. 

Background Check Restrictions: Changes To Federal Laws 

While this law technically went into effect in 2021, it wasn’t until the end of December. Going into 2022, you need to be aware of the federal Fair Chance to Compete for Jobs Act of 2019. The law is meant to make it easier for former convicts to re-enter the workforce to reduce recidivism. The law prohibits employers from asking candidates about their criminal history until a conditional job offer is made. 

While this law will impact most employers, there are some exceptions. Jobs that require access to classified information and jobs involving law enforcement are typically exempt, and there are also state-specific exceptions. In Georgia, for example, jobs in certain industries – such as home health, hospice ,and private home care – actually require a criminal background check. Always check regulations in your area closely.  

Marijuana Screening Laws 

In 2022, Connecticut and Virginia made state-wide changes to marijuana screening laws, and Philadelphia changed regulations for employers operating within city limits. 

Connecticut

Connecticut’s new regulations regarding marijuana screening go into effect on July 1st, 2022. The law stipulates that employers cannot take adverse action against job candidates who used marijuana prior to being hired. If a current employee tests positive for marijuana, you can only take adverse action if your company has a written drug policy in place. However, there are exceptions for jobs that require driving, jobs that impact public health safety, and jobs that involve supervising children. 

Virginia 

Virginia’s new regulations also go into effect on July 1st. Employers can no longer take adverse action against job candidates or applicants for the legal use of cannabis oil. Employees need to present a written certification from a health professional confirming they use cannabis oil to treat a diagnosed health condition. 

Philadelphia 

Philadelphia’s new laws went into effect on January 1st. Philadelphia employers can no longer require pre-employment marijuana testing. There are exceptions for law enforcement jobs, jobs requiring the supervision of children, and commercial driving laws. 

State-Specific Fair Hiring Laws

Some states and cities have added specific regulations for fair hiring laws that expand on federal regulations. 

Louisiana 

Starting in August of 2021, Louisiana prohibits employers from considering a candidate’s arrest record or non-convictions in hiring decisions. If you believe criminal history could impact a candidate’s job performance or duties, you can get an individual assessment from the Equal Employment Opportunity Commission to gain permission to conduct a criminal background check. 

Maine

In late October of 2021, a law went into effect in Maine prohibiting employers from asking about criminal history on job applications. The law also prohibits job applications or advertisements from saying those with criminal histories should not apply or will not be considered. However, federal or state laws require criminal background checks for certain jobs, and these laws override the new regulation. 

Philadelphia

An amendment to Philadelphia’s existing Fair Criminal Record Screening Standards (FCRSS) will go into effect April 1st, 2022. It expands the current regulations to cover both independent contractors and gig workers. Philadelphia’s FCRSS prohibits employers from asking candidates about their criminal history both on job applications and during interviews. 

New York City 

New York City is also amending existing legislation this year. Amendments to the New York City Fair Chance Act will go into effect on July 29, 2022. This will require employers to conduct all non-criminal background screenings prior to making a conditional offer of employment. Employers can only conduct criminal background checks and motor vehicle checks after making an offer. 

Date Of Birth (DOB) Restrictions 

Both Michigan and California added restrictions regarding using a candidate’s date of birth and other information during background checks that go into effect this year. That being said, California’s regulations are still relatively new and undergoing ongoing legal challenges, so pay close attention to any changes throughout the year. 

Michigan 

Michigan previously had a DOB redaction policy in place. However, as of April 1, 2022, employers can use a candidate’s DOB with their consent to access criminal records or for identity matching purposes. 

California 

In July of 2021, a California court of appeals issued a ruling regarding redacting certain information from public records. An individual’s DOB, driver’s license number, social security number, and other identifying information will now be redacted from the public record. This could severely restrict both background checks and identity verification, but it’s possible that the law could face further legal challenges. 

Salary History Bans 

Nevada 

In October of 2021, Nevada passed several regulations involving discussing a candidate’s salary history. Employers cannot request past wage information, and they cannot consider a candidate’s wage or salary history – even when shared voluntarily – in the hiring process. 

Background Check Restrictions: The Bottom Line

Background check restrictions change all the time – and it’s still early in the year. There may be even more adjustments to existing laws and regulations, so pay close attention to the news. While it can be complicated to keep track of ever-evolving legislation, it’s well worth the effort to keep your company legally compliant. 

Need help with the background check process? At PeopleG2, we help all our clients stay up-to-date with federal, state, and local regulations throughout the background check process. Reach out here to learn more. 

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