- Posted by: adminbb
- Category: Background Screening, International Background Checks
The background screening rules and regulations shaping recruitment trends in the US are creating a landscape of litigation minefields. The years ahead for employers on US soil promise tightening controls on the information allowed to be made available on job applications for pre-employment checks as well as criminal record investigations.
In this article we’ll look at 5 industry-wide emerging trends that all employers need to stay abreast of from 2020 onwards.
1. Ongoing Background Checks
Firstly employers are embracing ongoing background screening to keep up to date with any changes in their employees’ backgrounds.
Employers use this progressive method of performing background checks on a regular basis to know whether employees get booked for any driving offences or new criminal records while they are employed.
Employers in industries such as construction, education, data security, healthcare, IT and transport are keenly adopting ongoing background checks to mitigate the risk of unlawful actions by any dissenting employees. Moreover It also helps prevent their brand being unexpectedly brought into disrepute.
Ongoing pre-employment check is especially important to monitor employees in the IT industry that have access to Personally Identifiable Information (PII).
Data breaches are commonplace, often due to negligence, as organizations often don’t take all the necessary precautionary measures to prevent PII being made publicly available.
Leaving highly sensitive personal data inadequately protected is often just an innocent mistake due to a lack of data protection expertise. Problems arise when a disgruntled or untrustworthy employee sees an opportunity to exploit lax security measures.
Taxi and food delivery services using freelance drivers such as Uber, Lyft, Grubhub and UberEats are especially prone to risk of predatory drivers and riders – even with rigorous pre-hire background screening checks in place.
The aim of employers doing ongoing pre-employment check is not to catch out employees but to foster honest and transparent dialogue between bosses and employees if something negative pops up. Employees knowing they have the support of their bosses is an excellent way to nurture a positive and mutually beneficial relationship.
2. Social pre-employment Checks
While data protection for personal information is paramount in all industries, people leading a digital lifestyle reveal an awful lot about their personal lives on social media. As a result, more than 70% of employers reportedly use social media to screen candidates, according to a survey by CareerBuilder.
Using a social media screening report is becoming an increasingly popular addition to conventional pre-employment checks as well as criminal background checks. Moreover It gives employers a lot more information on candidates to compare with the information presented on an application form and cover letter.
However, employers also risk discriminating against an individual if they make hiring or firing decision based on their social media content.
According to brandwatch.com, more than 3.7 billion people use social media – many of them with several accounts across different platforms. Between 68 and 70 percent of American adults have a Facebook account.
Businesses, too, use social media to promote their brands. About 90% of retail brands have at least one social media channel, in contrast about 80% of small businesses use some kind of social media.
With the use of social media to make judgements being such a delicate issue. Professionals discourage employers are from social media screening. An employer might unconsciously judge a candidate on his or her appearance, beliefs, or a lifestyle choice they post on a social network.
Please note, there’s a difference between employers that screen social media to actually performing social media screening.
If a company wants to use social media screening – either for a one-time background check or for ongoing pre-employment checks – the employer should use an accredited third-party consumer reporting agency.
This allows the agency to furnish the employer with accurate, actionable and last but not least fully compliant information along with protection from discrimination complaints.
3. Pre-employment Checks for Freelance Workers
One of the biggest growing trends in the digital age is the increasing number of people working online or remotely on a freelance or self-employed basis.
According to sources such as freelance network Upwork, the number of freelance workers worldwide has doubled in the past five years.
A 2010 study by Intuit predicted that that number of self-employed individuals in the US would rise to 60 million, or in other words 40% of workers, by the end of 2020. In contrast, the latest figures from consultancy.uk reveal as much as 5 million self-employed people in the UK.
Doing pre-employment check on the self employed is a challenge. One step that many employers take to protect themselves and their clients is to have freelancers sign a non-disclosure agreement before discussing details of the project. At least this gives the employer a legal document as recourse if things go awry.
Screening individual freelancers for each new project can be a costly and time-consuming exercise, but an employer’s decision to hire a freelancer is usually based on trust and judgement from portfolios and word of mouth or reviews.
4. DOT Drug Testing
Individuals and private corporations under contract with or under the authority of the US Department of Transportation (DOT) and working in highly sensitive positions or unsafe environments must therefore undergo a urine test to check for drug use.
The DOT tests are procedures to check for alcohol plus a wide range of drugs, such as:
Alcohol tests are the most popular. However they can be done quickly and easily with breathalyzers and saliva tests. Other types of tests are done in a laboratory. Workers are required to undergo DOT tests for positions such as, but not limited to:
School bus drivers, pilots, truck drivers, subway operators, train engineers, aircraft maintenance crew, ship captains and security personnel, and many more.
Fair Credit Reporting Act (FCRA)
Companies and organizations involved in the US transport industry are regulated by the Federal Motor Carrier Safety Administration (FMCSA), also they are bound by the Clearinghouse Regulation to conduct pre-employment background checks on their drivers for any previous drug and alcohol violations.
The Clearinghouse introduced new rules in January 2020, insisting that background checks for these organizations must be carried out by a certified consumer reporting agency (CRA).
In an ongoing effort to improve drug testing, the Clearinghouse is considering introducing hair testing – in other words testing for drugs using strands of hair – to get results with a longer window of detection compared to urine and saliva testing methods. Therefore if introduced, employers could potentially know whether a candidate has used drugs in the past weeks or even months.
5. Salary History Bans
US employers doing background checks have to tread very carefully when screening applicants and fishing for details about their salary history. Asking candidates to disclose past or current salaries is banned in 35 states and over 150 municipalities across the United States.
The term ‘Ban the Box’ was introduced in 2012 to urge all US employers to forego asking applicants to self-reveal a criminal past. President Obama banned the box from federal job applications in 2015, introducing legislation that currently affects more than 75 percent of the US population.
The aim of the ban-the-box move was to prevent discrimination, especially against women and ethnic groups. The law is also meant to encourage employers to evaluate an applicant’s qualifications before performing a criminal background check. It means that employers cannot use a checkbox on applications asking if the applicant has a criminal record, in case the employer is in a ban-the-box jurisdiction. Those employers must also wait until after they’ve made a job offer to do a criminal background check.
Most local employers with under 100 employees living and working in the same state will be familiar with ban-the-box regulations governing them. However nationwide and international organizations have a much tougher time in this respect as they have to tailor the recruitment process depending on the place of hire and/or the applicant’s jurisdiction. However more states are about to adopt ban-the-box legislation by 2021. Including Kansas City, Missouri, New York state and New Jersey.
Colorado is most likely to approve the Equal Pay for Equal Work law in 2021. But rogue states Michigan and Wisconsin are keeping the box on application forms. Nevertheless they have effectively banned salary bans.
Employers can benefit greatly by teaming up with a certified consumer reporting agency to ensure they don’t trip up on legislation and therefore face lengthy court cases brought against them simply for wanting to know whether an applicant poses a potential risk to the brand and workforce.
The cost of litigation and HR work hours dedicated to processing applications for medium-sized enterprises far outweighs the relatively low cost of outsourcing a background screening agency. Therefore it is way more affordable to team up with with professional agency than doing checks in-house.
Finally If you’d like to find out more about our flexible options for helping you get ahead and staying out of the labor courts contact one of or team members for a free consultation.
Intelimasters is a background screening agency, not a law firm. This article is for informational purposes only. Nothing in it should be considered as legal advice. We encourage you to consult with legal counsel regarding your specific business and/or individual needs.