Written By ESR News Blog Editor Thomas Ahearn
Human resource (HR) professionals conducting employment screening when hiring must adapt to several emerging background check trends including “Ban the Box” laws and the “gig” workforce in 2017, according to an article on the Society for Human Resource Management (SHRM) website.
In his article entitled Know Before You Hire: 2017 Employment Screening Trends, SHRM online editor/manager Roy Maurer interviewed several background check experts including Attorney Lester Rosen, founder and CEO of the background check firm Employment Screening Resources® (ESR).
Ban the Box
Currently, 24 states and over 150 cities and counties have Ban the Box laws that require employers to delay asking about the criminal history of job applicants until after an interview or provisional job. However, Rosen says Ban the Box does not mean there can never be criminal background checks.
“The concern is that their employment application will be automatically rejected just based upon their status as ex-offenders as opposed to what they can offer an employer,” explained Rosen, author of a revised 3rd edition of his book The Safe Hiring Manual that was published in January 2017.
“That does not mean that a background check will not be conducted or that an employer cannot exercise appropriate due diligence, but just that it is delayed until later in the process,” said Rosen, who chose Ban the Box as the #1 trend on the ESR Top Ten Background Check Trends for 2017.
Maurer also wrote how employers “will need to figure out how to adapt their screening processes to the fast-growing on-demand workforce” in a “gig” economy that focuses on temporary work – “gigs” – and accounted for 30 percent of new jobs, according to a 2015 American Action Forum Report.
Rosen explained that a lack of integrated screening technology will hinder employers, background screening firms, contingent labor suppliers and on-demand platforms, wrote Maurer. An Intuit report found contingent workers make up 36% of the workforce and are expected to reach 43% by 2020.
“The same level of screening used for similar positions should be used for a position that is to be filled by a nontraditional worker or else the firm may be subject to allegations of disparate treatment of similarly situated people,” Rosen explained to Maurer in the SHRM article.
With more firms using “continuous screening” to reduce insider threats from employees, Rosen explained that “employers need an explicit, well-crafted policy on how they will deal with a new criminal record they may uncover” that conforms to the Fair Credit Reporting Act (FCRA).
“Under the FCRA, all checks including periodic checks must be done with consent unless there is a specific investigation for suspicion of misconduct or wrongdoing,” said Rosen, who noted firms must comply with Equal Employment Opportunity Commission (EEOC) regulations against discrimination.
“It’s not clear that an employee can be terminated for a refusal to consent to continuous screening, absent some explicit employer policy or a strong showing of need,” Rosen told Maurer. “The issue becomes more complicated if the refusing employee is a member of a protected class.”
In October of 2016, the EEOC held a meeting on how the use of algorithms and other means of evaluating thousands of pieces of information about an individual – otherwise known as “big data” – were being used to make hiring and other employment decisions during background checks.
“Big data has the potential to drive innovations that reduce bias in employment decisions and help employers make better decisions in hiring, performance evaluations and promotions,” said EEOC Chair Jenny Yang, who also wants to ensure big data “does not create new barriers to opportunity.”
“Employers will have to make sure that if they use big data while performing background checks for employment that they do not knowingly, or unknowingly, enable and automate potentially discriminatory hiring practices,” Rosen added.
Maurer also covered other trends in his article including how social media screening of applicants will continue to grow. The complete article is available at www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/2017-employment-screening-trends.aspx.
ESR Top Ten Background Check Trends for 2017
Employment Screening Resources® (ESR) has released its 10th annual ESR Top Ten Background Check Trends for 2017 as selected by ESR Founder and CEO Attorney Lester Rosen. For a complete list of all of the trends, visit www.esrcheck.com/ESR-Top-Ten-Background-Check-Trends.
To help employers prepare for changes in the background check industry, Rosen hosted a live webinar for the ESR Top Ten Background Check Trends for 2017 on January 18, 2017. To view a recording of the webinar, visit https://attendee.gotowebinar.com/recording/6096090867700994563.
NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.
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