Changes to Background Checks in 2024

Background checks are increasingly becoming a key part of the hiring process for many companies. However, many employers understand that the laws governing background checks can be a complex combination of federal, state, and local regulations. To make things more complicated, these laws often change as new legislation is passed. Therefore, any employer who uses background checks should take the time to familiarize themselves with the changes to ensure continued legal compliance.

This article provides an overview of changes to federal and state laws that take effect January 1, 2024, regarding professional background checks.  This article is for informational purposes only, and should not be considered legal advice.

Federal Changes for 2024

On a federal level, there were no broad or sweeping changes to any legislation governing consumer privacy or background checks. However, in early January, the Consumer Financial Protection Bureau issued two advisory opinions to address inaccurate background check reports and insufficient credit file-sharing practices for consumer reporting companies.

• The first opinion states that reports “must be complete, accurate, and free of information that is duplicative, outdated, expunged, sealed, or otherwise legally restricted from public access.” One example of information that a consumer reporting company would be prohibited from sharing would be a criminal charge that does not result in a conviction that is now beyond the seven-year period that starts at the time the charge is made.
• The second opinion says that consumers are entitled to receive all of the information in their consumer file that is present at the time the request is made, including the source or sources of information and both the original and any intermediary vendor sources. The opinion makes it clear that consumers only need to make the request and present valid identification to be entitled to all information. They do not need to use any specific language to be granted access to their complete file.

The Consumer Financial Protection Bureau has also released an updated version of the A Summary of Your Rights Under the Fair Credit Reporting Act notice to job applicants and employees. This notice is required to be disseminated to any applicant or employee who will be undergoing a background check for employment-related purposes. Beginning on March 20, 2024, employers and consumer reporting agencies must provide the new version of this notice in order to comply with the federal Fair Credit Reporting Act. Therefore, all employers and consumer reporting agencies should spend some time in the early months of the year getting the updated version and preparing it for dissemination through any means they may use.

State Changes for 2024

In addition to any federal updates or changes, several states also have new laws that may impact the background check process. A summary of these changes includes:

• In California, there is a new law that prohibits employers from discriminating in their hiring, termination, employment terms or conditions, or other penalties when the discrimination is based on the individual’s use of cannabis when they are off-the-job and away from the workplace but have positive results for cannabis from a drug screening test. However, there are exceptions for positions that require federal background and clearance checks.
• Similarly, the state of Washington has a law, effective January 1, 2024, that will prohibit employers from making hiring decisions based on off-duty marijuana use, including positive pre-employment drug tests that indicate cannabis use. Employers are advised to refrain from including marijuana in pre-employment drug tests unless an exception applies. The law does not apply to individuals seeking positions that require a federal background check or security clearance, certain public safety positions, and certain safety-sensitive positions.
• New York’s Clean Slate Act will take effect on November 16, 2024. This law requires the automatic sealing of certain convictions’ records after specified periods. This law prohibits employers from asking about sealed records or discriminating against applicants or employees based on sealed records. Records automatically sealed under the Act may still be accessed and used by any organization required under state or federal law to conduct a fingerprint-based background check when the applicant would be working with children, the elderly, or vulnerable adults. The timelines for record sealing are:
  • Traffic infractions involving driving while the driver’s ability is impaired by alcohol or drugs will be sealed after three years.
  • Misdemeanors will be sealed three years from the individual’s release or the imposition of sentence if there was no sentence of incarceration.
  • Felonies will be sealed eight years after release.

There can be no doubt that complying with the laws governing background checks can be challenging, especially when changes occur. To learn more about background check compliance and changes in the new year, contact USA Fact today!

USAFact Global Screening Services provides comprehensive background and criminal checks for employers that comply with federal and local laws. Our tailored solutions can help you reduce the number of high-risk applicants, making your workplace a safer and more productive environment.