Five 2021 Updates that Impact Background Checks

Criminal background check

The year 2020 was marked by tremendous changes in organizational structure and operational processes. It should be no surprise then that several legislative changes have impacted criminal background checks on potential employees. While many of the changes occur on a state level, there is also one that impacts the entire nation. An overview of these changes include:

1. The Fair Chance Act & Ban the Box Legislation

The federal Fair Chance Act is part of the National Defense Authorization Act (NDAA) signed into law by President Trump in 2019. It will take effect in December 2021. This act prohibits federal contractors – no matter where they are located in the nation – from asking certain information about an applicant’s criminal history during the application process’s initial states.

Passage of this provision is primarily seen as the federal government’s foray into the ‘Ban the Box’ movement gaining traction across the nation. As of early 2021, Ban the Box legislation existed in 17 states and territories and the District of Columbia. The details of these laws vary from each area, but they all provide restrictions on what employers can ask about a candidate’s criminal history during the application process. The laws get their name because, in many instances, they would remove the checkbox on a typical employment application that asks candidates about their criminal history.

The removal of this restriction can help potential candidates move past the initial hiring stages. However, employers can still consider convictions or conviction-related information later in the process, particularly if the criminal history has a direct tie to the current position sought. For this reason, many employers will want to continue or broaden the use of criminal background checks in their hiring process.

2. Second Chance Law (Georgia)

In the state of Georgia, Governor Brian Kemp signed the Second Chance Law in August 2020. This law took effect on January 1, 2021. It extends background check laws to allow more Georgia residents to restrict and seal records related to specific misdemeanors and felony convictions. This law goes a step further to also prohibit employers from viewing these records when they conduct a criminal background check.

Those who petition the court to restrict and seal records are restricted to doing so for a maximum of two misdemeanor convictions. Violent felonies and sexual offenses are not allowed to be sealed. Additionally, certain industries – such as those with access to vulnerable populations – are still required to conduct criminal background checks. There are substantial liability protections for employers who do engage in second-chance hiring under this law.

3. Childcare Laws (Washington)

The state of Washington already has a Ban the Box law in place prohibiting employers from asking about criminal history during the application process. However, they have now enacted a law that exempts childcare businesses from this legality which took effect on January 1, 2021. Further, the new law requires childcare businesses to conduct background checks on anyone authorized to care for or have unsupervised access to children in early learning programs. Also, employers are prohibited from denying employment to applicants who have an instance of child abuse or neglect on their background but have since obtained a certificate of parental improvement.

4. Salary History Law (Colorado)

Colorado’s new salary history law took effect on January 1, 2021. It prevents potential employers from doing many activities related to a candidate’s salary history. These include:

  • Basing an applicant’s wage rate on their salary history.
  • Using an individual’s wage rate history to justify disparities in their current rate.
  • Discriminating and/or retaliating against any applicants who do not provide information about their wage rate history.
  • Firing, discriminating, or retaliating against an employee who enforces or invokes the wage rate history ban on behalf of themselves or another individual.

This law does not prevent applicants from voluntarily disclosing their wage rate history.

5. St. Louis Ban the Box Restrictions

Like many states in the US, the city of St. Louis, Missouri, has implemented a Ban the Box law that took effect on January 1, 2021. This law applies to employers with at least ten employees who are now prohibited from hiring or promoting based upon someone’s criminal history.

Employers are also prohibited from excluding applicants with a criminal history when posting a job. If they seek information about criminal history from final candidates, they must request the same information from all final candidates.

Following the evolving state and national legislation related to hiring can be a challenge for many employers. When you work with USAFact, you can rest easy knowing that all criminal background check information will comply with all applicable laws in your area.