- Posted by: adminbb
- Category: International
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 background checks and 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
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. It also helps prevent their brand being unexpectedly brought into disrepute.
Ongoing background screening 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 background checks 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 Screening
While data protection for personal information is paramount in all industries, most people leading a digital lifestyle reveal an awful lot about their personal lives for the entire world to see 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 background screening checks and criminal background checks. 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, and about 80% of small businesses use some kind of social media platform.
As such, employees and employers becoming ‘friends’ on social media platforms has the potential to create embarrassing situations. Social media posts that can persuade an employer not to hire a candidate – or to fire an employee – might include provocative photos, drinking booze, using drugs, discriminatory comments and of course, criminal behaviour.
With the use of social media to make judgements being such a delicate issue, employers are strongly discouraged from social media screening. An employer might unconsciously judge a candidate on his or her appearance or beliefs, or a lifestyle choice they post on a social media network.
Please note, there’s a difference between employers that screen social media to actually performing social media screening.
An employer who uses social media screening to make hiring and firing decisions risks being influenced by presuppositions and assumptions based on his or her own beliefs. There is also the risk that an applicant or employee has cause to file a discrimination claim against the employer, if they know that their social media profile has been used to make a hiring decision.
If a company wants to use social media screening – either for a one-time background check or for ongoing background checks – the employer should use an accredited third-party consumer reporting agency.
This allows the agency to furnish the employer with accurate, actionable and fully compliant information along with protection from discrimination complaints.
3. Background 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 40% of workers, by the end of 2020.
In comparison, the latest figures from consultancy.uk reveal 5 million self-employed people in the UK.
Doing background screening checks 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. This at leasts 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. 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 undergo a urine test to check for drug use.
The DOT tests are procedures to check for alcohol plus a wide range of drugs, including:
Alcohol tests are the most popular. 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 school bus drivers, pilots, truck drivers, subway operators, train engineers, aircraft maintenance crew, ship captains, security personnel and so on.
Fair Credit Reporting Act (FCRA)
Companies and organizations involved in the US transport industry are regulated by the Federal Motor Carrier Safety Administration (FMCSA). 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 – testing for drugs using strands of hair – to get results with a longer window of detection compared to urine and saliva testing methods. 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, if 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. 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.
More states are set to adopt ban-the-box legislation by 2021, including Kansas City, Missouri, New York state and New Jersey.
Colorado is set to enact the Equal Pay for Equal Work law in 2021 but rogue states Michigan and Wisconsin are keeping the box on application forms. 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 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.
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.