By Rachel Theisen
Whether you’re getting a little Marie Kondo inspiration around the home, or looking to remove clutter in your office, spring is the perfect time to purge, clean, and organize. It’s also the perfect time to review your organization’s hiring practices and forms for compliance. Below are three spring cleaning items to consider when tackling any clutter from the past year.
Ban the Box
Thirty-three states, the District of Columbia, and more than 150 cities and counties have passed ban the box or fair chance policies. Eleven of these states and many of these cities have passed legislation that require both public and private employers to remove criminal history questions from their employment applications. These laws require that employers wait until the later stages of the hiring process to inquire into an applicant’s criminal history – usually after an interview or a conditional offer of employment has been made. The most recent jurisdictions to pass ban the box laws affecting private employers include The U.S. Virgin Islands (effective November 2018) and Westchester County, NY (effective March 2019). Colorado has introduced a ban the box law that is expected to pass this year.
InCheck recommends that employers determine if any ban the box laws apply to them, or their applicants, and review their employment applications, criminal history questionnaire, and hiring practices to make any necessary changes. More information regarding specific ban the box laws can be found in the National Employment Law Project (NELP) Ban the Box Guide.
Disclosure and Authorization Forms
FCRA Mandated Forms
If you’re a regular reader of InCheck’s Quarterly Compliance Newsletter, it should come as no surprise that disclosure and authorization forms made our spring cleaning list! The Fair Credit Reporting Act (FCRA) has strict requirements regarding the disclosure made to a consumer, as well as the consent provided by a consumer, prior to conducting a background check. Below are a few recommended best practices:
- Ensure that your authorization and disclosure forms are stand-alone documents, separate from the employment application.
- Review your disclosure form to ensure that it is “clear and conspicuous,” devoid of extraneous information (FCRA §604(b)(2)(A)(i)).
- Based on litigation from the past couple years, liability waivers located within the disclosure form may be considered extraneous information. It’s recommended that liability waivers be removed from the disclosure form.
- Based on more recent litigation, state disclosures included in the same document as the FCRA disclosure may be considered extraneous information. It’s recommended that these be provided in a document separate from the FCRA disclosure.
Considering the majority of FCRA class action lawsuits focus on the failure of employers to provide proper disclosure, and therefore failure to obtain proper consent, it’s imperative that employers regularly review their forms for compliance.
State/City Mandated Forms
In addition to ensuring that your disclosure and authorization forms are compliant with the FCRA, it’s important to ensure that you provide candidates with additional state/city disclosures or notices, when applicable.
State/city disclosures or notices provide applicants with information regarding their rights and/or what jurisdiction-specific restrictions apply to employers. Occasionally, disclosures or notices are amended by their respective government agencies. Employers should be aware of any newly amended disclosures or notices and implement them as needed.
Compensation History Ban
Since InCheck initially reported on this in our December 2017 Quarterly Compliance Newsletter, compensation history bans have been sweeping the nation. Over the past two years there has been a significant increase in jurisdictions prohibiting prospective employers from inquiring into an applicant’s compensation history.
Compensation history bans generally prohibit the prospective employer from asking an applicant about their prior compensation during the hiring and negotiation process. This does not simply apply to the initial employment application, but also to the interview process. In general, there are five items to consider when compensation history restrictions apply:
- The first two items of consideration are whether the law restricts pre-offer and/or post-offer inquiries regarding compensation history. Some jurisdictions restrict both, others restrict pre-offer inquiries while allowing post-offer inquiries, and some allow post-offer inquiries only after an offer that includes compensation terms has been made.
- The third item to consider is unprompted voluntary disclosure by an applicant. Jurisdictions that allow prospective employers to consider voluntary disclosure make it clear that such a disclosure by the applicant must be unprompted. An optional compensation field on an application may not be considered “unprompted” under these laws.
- The fourth item to consider is whether employers may seek and consider publicly available compensation information. This information may be available for government employees, executives of publicly traded companies, etc.
- The fifth item to consider is whether or not the law restricts verifying compensation with former employers. Usually, this requires the prospective employer to obtain authorization from the applicant and/or have made a conditional offer to the applicant.
Not every jurisdiction goes into detail regarding these five items of consideration. When a law is silent on any of these items, best practice for prospective employers is to consider the most conservative approach. We recommend that these best practices be shared with employees involved in the interviewing and on-boarding process to ensure compliance throughout your organization.
We recommend that in addition to regularly reviewing onboarding documents and procedures, employers partner with a screening provider that makes compliance and best-practices, along with excellent customer service, a priority. If you’re looking to elevate your background screening process, we’d love to hear from you!
Disclaimer: This blog is for general informational purposes only and should not be construed as legal advice.