How The Pandemic Affected Background Screening In 2020

While 2020 began with historically low unemployment, high wages, and a strong workforce mirroring an equally healthy economy, by late winter, the year would be met with a pandemic causing a seismic change in the way business operates. Employers would find themselves with a struggling economy and the challenge of remaining viable and maintaining operations while reducing the risk of contagion to their workforce. 

News of the Covid-19 pandemic and related legislation dominated headlines in 2020; however, lawmakers and regulators in the U.S. still managed to advance an assortment of laws providing further protections for job seekers imposing additional compliance responsibilities for employers. Here is a look back at some of the notable changes to the legal landscape affecting how employers manage their background screening programs.

Ban-the-Box Laws

Fourteen states, 23 cities or counties, and the District of Columbia have adopted laws that impose restrictions on an employer’s ability to inquire into a candidate’s criminal history.   Ban the box laws eliminate the checkbox often included in an employment application that asks a candidate to disclose their criminal record. How ban the box laws protect an ex-offender's rights will vary from location to location. They range from those that delay inquiries into a candidate's criminal history to those that require an individualized assessment of a candidate's criminal record against the job sought, to those that require identification of potentially disqualifying criminal history, to those that require special notices or forms as prescribed by law. 

New ban the box laws passed or effective in 2020 include:

-       Maryland's statewide ban the box law, which prohibits employers in the state with 15 or more employees from assessing a candidate's criminal history until after a conditional offer of employment is made.

-       Montgomery County, Maryland’s more restrictive measure, which was amended to apply to any employer within the county with at least one employee, mirrors the state's standard by prohibiting an employer from inquiring into a candidate's criminal history until after a conditional job offer. The revised law is effective after the new year on February 19, 2021. Employers in Maryland should be reminded that Baltimore and Prince George’s County also maintain ban the box laws that are more obstructive than Maryland's new directive.

-       Waterloo, Iowa’s ban the box law applies to employers with 15 or more employees. It prohibits inquiring into a candidate's criminal history and adversely affecting a candidate's employment prospects based on their criminal record unless the candidate's criminal history would affect their ability to perform or cause an unreasonable risk to the employer or their patrons. 

-       St. Louis, Missouri’s ban the box law is effective on New Year’s Day and restricts employers with at least ten employees from basing hiring or promotion decisions on criminal histories.

-       Hawaii amended its ban-the-box law to offer better opportunities for hire for candidates with older criminal records. The revised law limits most employers so that misdemeanor conviction records falling within the previous five years and felony convictions falling within the last seven years, excluding periods of incarceration, are assessed.

-       Suffolk County, New York’s new law prohibits an employer in the county with 15 or more employees from asking questions about a candidate's criminal convictions during any aspect of the application process. 

-       New York City has enhanced its existing Fair Chance Act, which includes a ban the box component, to provide numerous additional protections for ex-offenders. Notably the revisions substantiate the need to establish an affirmative defense that the prospective employer would not have made an offer regardless of the candidate’s criminal history.  As a result, many employers may choose to implement a staged background check process whereby criminal checks are only run after the prospective employer is satisfied with all other searches and verifications required as part of the vetting process. An employer must also request information from the candidate for each criminal assessment factor established by New York Corrections Law, Article 23-A. New non-criminal offenses and violations cannot be considered as part of the employment process. Under the revised law, employers must now conduct individualized assessments of a candidate or employee's arrest or pending criminal charges; automatic bars to employment are prohibited. While employed, individuals convicted of a criminal charge are now afforded the review and assessment process prescribed by the city's Fair Chance Act. Inquiries into and assessment of "non-pending" arrests, criminal affairs that are under consideration for dismissal, adjudications disposed as a youthful offender, and sealed offenses are barred. 

-       The California Department of Fair Employment and Housing (“DFEH”) recently clarified the state’s criminal background check regulations to expand the scope of its Fair Chance Act and places employers on notice regarding DFEH’s intended enforcement of the law.

As employers look on to 2021, they should expect the trend of ban the box legislation to progress at the state, county, and city levels. 

Pay Equity and Salary History Bans

The national trend continues in the U.S., as additional cities and states have introduced pay equity legislation in 2020 to help tackle the gender pay gap.

New pay equity or salary history bans passed or effective in 2020 include:

-       New Jersey’s law prohibits employers from requesting or relying on a candidate’s salary history in hiring and setting compensation.

-       New York State amended its law that outlaws direct and indirect inquiries about a candidate’s compensation history to apply to all jobs within the state, even if the employer does not maintain a presence in New York. Employers in Albany, Suffolk and Westchester Counties and New York City are reminded to comply with any more restrictive measures than those promulgated by the state.

-       Cincinnati, Ohio’s salary history ban restricts employers from inquiring into or relying on a prospective employee’s prior salary history when establishing their starting pay.

-       Toledo, Ohio’s ordinance bars employers from inquiring about or using a candidate’s salary history as part of the screening process, when deciding whether to offer employment or when determining salary, benefits, or other compensation.

-       Maryland has amended its pay equity law to require that, upon request, employers provide the wage range for the position to which the candidate applied.  Employers are also prohibited from retaliating against applicants who request a wage range or inquire into or rely upon a candidate's compensation history to set future compensation.

-       Colorado’s existing law, which includes a salary history ban, has been clarified with the issuance of final Equal Pay Transparency Rules, which requires that employers "disclose in each posting for each job opening the hourly or salary compensation, or a range of the hourly or salary compensation, and a general description of all of the benefits and other compensation to be offered to the hired applicant” and “make reasonable efforts to announce, post, or otherwise make known all opportunities for promotion to all current employees on the same calendar day and prior to making a promotion decision.”

While progress towards pay equity legislation quieted over the course of 2020, the goal of eliminating the gender pay gap will certainly continue to be a focus for constituents and lawmakers alike. 

Marijuana Reform and Accommodation

Movement towards decriminalizing, but in many cases not fully legalizing, cannabis has taken hold in 2020. In these cases, marijuana remains illegal, but possession of small amounts is not prosecuted.

-       Federal Decriminalization – On December 4, 2020, the Marijuana Opportunity Reinvestment and Expungement (MORE) Act (H.R. 3884) passed the U.S. House of Representatives and has now gone to the U.S. Senate for consideration this term. Suppose this revolutionary bill passes into law, albeit unlikely based on the current composition of the Senate. In that case, it will undoubtedly prompt more individual states, counties, and cities to advance their own marijuana legislation. Notably, for employers, it will prohibit random drug testing for employment purposes for most unregulated positions.     

-       Decriminalization of Marijuana in Virginia – Virginia has decriminalized simple marijuana possession, reducing a maximum fine of $500 and a maximum 30-day jail sentence for a first offense to a civil penalty of “no more than $25.” While the state chose not to legalize marijuana, it has decriminalized simple marijuana possession and prohibits employers from requiring candidates to disclose past marijuana possession criminal charges. Decriminalization means that convictions for simple marijuana possession will not be reflected on an individual's criminal record and that ex-offenders can seek expungement. However, suppose a driver is found to possess marijuana while operating a commercial motor vehicle. In that case, that violation will be reported to the state’s Department of Motor Vehicles and added to the driver’s motor vehicle record.

-       Votes on Marijuana Reform – During the November elections, America saw a green wave sweep the country, with voters in three states – Arizona, Montana, and New Jersey – approving recreational marijuana and Mississippi voters supporting medical marijuana. Voters in South Dakota advanced laws that legalize both medical and recreational marijuana. While this adds to a confusing patchwork of legislation for employers, none of these new laws impact drug testing.

-       Medical Marijuana – Utah’s medical marijuana law was amended to clarify that private employers are not required to accommodate the use of medical marijuana, are permitted to conduct drug screening for marijuana, and allows employers to implement zero-tolerance policies against marijuana use at the workplace or while on the job. 

-       Marijuana Testing or Adjudication – It is unlawful for employers in Nevada to adversely affect the employment chances of a candidate who tests positive for marijuana on a pre-employment drug test.  Candidates are also allowed to rebut the initial drug test results within the first 30 days of employment by taking a second drug test. In New York City, most employers are prohibited from administering pre-employment testing for marijuana unless the candidate is a safety-sensitive or other specified regulated positions.

As we saw in 2020, marijuana reform and accommodation will undoubtedly continue to progress. More than half of all states have adopted a form of law that protects certain marijuana users, contrary to federal law.  Absent federal decriminalization and eventual legalization, states will continue to legislate at the will of their people. 

 Looking Forward

As lawmakers return to statehouses and council chambers across the country, employers can expect that Covid-19 related measures will continue to dominate the legislative agenda. However, numerous ban the box, pay equity, and marijuana bills have already made the 2021 docket. Employers and job seekers should remain optimistic and vigilant that 2021 may afford a glimpse into some sense of normalcy met by the usual gamut of laws impacting the workplace.