The Case Against Social Media Searches in a Socially Distanced World
The first quarter of 2019 is already behind us if you can believe it! I love our industry because it doesn’t stay stagnant, in fact it’s very fluid with laws always changing (sometimes more than just once in a year). This means that as a company we have to stay ahead of the curve to not only navigate these compliance waters with our clients but also maintain strict procedures with state and federal regulators.
What trends should employers be aware of thus far in 2019:
- Compliant Applicant Forms
There has been a great deal of case law revolving around the applicant disclosure and authorization form (this is the form completed by the applicant authorizing the employer to conduct the background screening report). Traditionally, the disclosure and authorization form had to both be on one page consisting solely of the disclosure and authorization (no other employment forms, notices, or applications could accompany it). In 2017, district court ruled that the disclosure and authorization MUST be separate from each other and reside on two pages, as to not cause confusion to the applicant and not including extraneous language (release of liability). Earlier this year courts ruled that additional state notices (aside from the state where the applicant currently resides) may not be on the disclosure and authorization form.
- Third Party “Pass Through” Fees
It’s always a challenge to explain to employers what a “pass through” fee as it relates to the background screening industry. In short, to get certain public record information (i.e. county criminal records, statewide repository records, education verifications, or employment verifications) the furnishers of that data (certain county courthouses, third party verifiers) will charge a fee to access their information. These fees must be paid in order to receive the most accurate and up to date information as a duty under federal law (FCRA maximum possible accuracy clause). The costs of these fees can range anywhere from a couple dollars to $95 depending on the type of search!! Additionally, these fees can be raised at the discretion of the furnisher of information without notice or warning. Employers would be best served to invest in receiving all accurate and compliant public record information as knowing all the facts will give allow them to make an informed hiring decision.
- Continuous Criminal Monitoring
Screening obviously shouldn’t stop upon hiring, this is something that has gained a lot of traction in the last year. Employers are slowly but surely implementing continuous criminal monitoring in their background screening process which will on an annual or monthly basis run a criminal search to see if any adverse information has been reported on the employee. Background screening polices must be updated if businesses decided to implement such a continuous criminal program.
- Ban the Box
Feel like we are beating a dead horse here, however with convoluted ban the box and fair chance act laws being implemented throughout the US employers need to stay on top of these laws especially if they operate in multiple locations/states. Obviously, removing the question on job applications inquiring about previous criminal activity should be a no brainer, even if employers don’t operate in a jurisdiction that has ban the box laws they should still use this as a “business best practice”. Secondly, majority of ban the box and fair chance act initatives require a conditional job offer before conducting or asking about previous criminal history. Lastly, take a “case by case” approach when receiving adverse action information on the report (individualized assessment must be conducted to determine suitability).
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