Changes in Criminal Background Check Compliance to Keep Your Eye On
June 7 2021
Legal compliance is always a hot topic in the background screening industry. Protecting consumer rights and confidentiality is a top concern for employers, consumer reporting agencies (CRAs), the Federal Trade Commission (FTC), and the Consumer Financial Protection Bureau (CFPB).
The Fair Credit Reporting Act (FCRA) provides guidelines for credit reporting and acceptable procedures. It describes permissible purposes for obtaining consumer information, how that information can be used, and informs CRAs and employers on how to make compliant employment decisions.
When examining your business’s priorities, legal compliance quickly comes to mind. A trustworthy screening provider will keep you informed about upcoming legislation and build compliance protocols into their technology. Let’s take a look at a couple of trends that might impact criminal background check compliance in the near future.
Criminal Background Checks and the Federal Fair Chance Act
Beginning in December of 2021, the Federal Fair Chance Act (a.k.a. a “ban-the-box” law), goes into effect and applies to all federal agencies and contractors nationwide. Under this law, impacted employers are prohibited from asking about criminal history or running a criminal background check prior to making a job offer, with a few exceptions. The Fair Chance Act serves as a federal extension of other “ban-the-box” laws already in place across 35 states and 150 cities.
There are three exceptions to the Act:
- If criminal history record information is required by law
- If the position would have access to classified information or have sensitive law enforcement or national security duties
- If the position is identified as exempt by the Administrator of General Services (or, in the case of defense contracts, by the Secretary of Defense).
The general purpose of this law (and others like it) is that candidates must initially be considered for a position based on their qualifications, not whether they have a criminal record. A criminal background check may be completed only after the employer has extended a conditional job offer to the applicant. This policy allows applicants an equal opportunity at employment because it reduces the likelihood that prejudices based on old or unrelated arrests or convictions will impact employment decisions.
It’s worth noting that results of a criminal background check can still be taken into account when making hiring decisions but should not be the sole decision-making factor. Circumstances should be reviewed on an individual basis to determine whether a candidate’s criminal history is applicable to the position and recent enough to be relevant. The EEOC’s Enforcement Guide is available to assist employers with making hiring decisions regarding the use of arrest or conviction records.
Should companies in the private sector make these changes if the law only impacts federal agencies and contractors? Possibly. This Act is only the latest in a growing trend of “fair chance” laws. As they become more commonplace, companies may want to get ahead of the curve and ward off any future legal troubles due to non-compliance. Further enhance your fair chance hiring practices with continuous criminal monitoring, in addition to expanding your employee pool and keeping abreast of relevant criminal activity within your workforce.
Employers should review and update their application materials to ensure they’re compliant prior to the law’s enactment. This will also provide hiring professionals an opportunity to adjust to the new regulations before legal consequences for non-compliance go into effect. Employers should consult with their legal counsel with questions related to their specific hiring practices and compliance with applicable laws.
InfoMart supports fair hiring and is equipped to assist you with implementing a fair chance program and remain compliant in your hiring processes.
The Future of Data Privacy
While the United States does not have a central federal-level privacy law, like the EU’s GDPR, there are several vertically focused privacy laws (as well as a smattering of consumer-focused privacy laws) coming from individual states.
A quick history lesson: Congress passed the US Privacy Act of 1974, detailing important rights and restrictions on data held by US government agencies. For example: access to data is restricted to a need-to-know basis, such as records for completing a pre-employment criminal background check. The landmark Act paved the way for the country’s other vertically focused privacy laws: HIPAA, GLBA, and COPPA.
Aside from these industry-focused US federal laws, data privacy remains mostly unregulated, allowing tech and social media companies to operate as they see fit. Various states are now stepping in to adjust for this with their own data privacy laws, like the California Consumer Privacy Act (CCPA).
Like the GDPR, the CCPA gives consumers the right to access, the right to delete, and the right to opt-out of the sale of their personal information. The CCPA initiated widespread state-level desire for comprehensive privacy bills, all of which can be monitored using the Privacy Legislation Tracker.
As state-level data privacy bills are signed into law, the right background screening partner will help you remain compliant while conducting criminal background checks. By choosing InfoMart, you can rest easy knowing we put your best interests first.
Choose the Screening Provider That Puts Compliance First
Improving our compliance procedures serves and protects both your company and your candidates. Just like the past 30 years, we will continue to do everything we can to improve our processes. With InfoMart, you can trust that you’re getting your applicant information from the experts.
About Tammy Cohen
Tammy Cohen, an industry pioneer and expert in identity and employment screening, founded InfoMart 30 years ago. Deemed the “Queen of Screen,” she’s been a force behind industry-leading innovations. She was most recently the first-to-market with a fully compliant sanctions search, as well as a suite of identity services that modernizes talent onboarding. Tammy revolutionized the screening industry when she stepped into the field, developing the first client-facing application and a due diligence criminal search that has since become standard for all background screening companies. Cohen has received national awards and honors for her business and civic involvement, including Atlanta Business Chronicle’s Top 25 Women-Owned Firms in Atlanta, Enterprising Women Magazine’s Enterprising Women of the Year award, the YWCA of Northwest Georgia’s Kathryn Woods Racial Justice Award, and a commendation in the 152nd Congressional Record. To learn more about Tammy, visit www.tammycohen.com.
InfoMart has been revolutionizing the global background and identity screening industry for 30 years, providing businesses the information they need to make informed hiring decisions. They develop innovative technology that modernizes talent onboarding, including a first-to-market biometric identity authentication application and a verified sanctions search. The WBENC-certified company is a founding member of the Professional Background Screening Association, and they have achieved PBSA accreditation in recognition of their consistent business practices and commitment to compliance with the FCRA. The company is dedicated to customer service, speed, and accuracy, and it has been recognized for its success, workplace culture, and corporate citizenship with over 45 industry awards. To Get the Whole Story on InfoMart, please visit www.InfoMart-USA.com, follow @InfoMartUSA, or call (770) 984-2727.