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Pre-Employment Screenings: Trends to Watch in 2021

In episode 90 of HR Break Room®, we sat down with employment law expert Louis Lessig and Paycom director of government and community affairs AJ Griffin to discuss pre-employment screening laws and trends to watch for in 2021.

One of the most notable trends, “ban the box,” will continue to gain momentum in the new year. The movement proposes eliminating criminal history from consideration in job applications.

“[Ban the box] is being driven by the criminal justice reform movement across the country and a desire by not only governments but also advocates to move toward what’s perceived as a fair employment environment,” Griffin explained. “Even the most conservative states are embracing this criminal justice reform, trying to re-employ individuals that have been incarcerated previously.”

Keeping up with FCRA compliance

We couldn’t discuss “ban the box” without bringing up the importance of Fair Credit Reporting Act (FCRA) compliance, which legislates how and when employers request background checks for potential employees.

“Variances between jurisdictions can be extremely complicated, especially if you have employees in multiple states or even multiple cities,” Griffin said. “An excellent background check partner and then very clear policies that are thoroughly reviewed by your attorney and followed consistently are vital for compliance.”

The hot topic of pre-employment drug screenings

With legislative changes regarding the medical and recreational use of marijuana in multiple states and the decriminalization of drugs in Oregon, pre-employment drug screenings will continue to be an important trend to follow in 2021.

“The decriminalization of drug possession doesn’t mean that employers must now allow drug use by their employees at any time, and it doesn’t impact federal drug-free workplace requirements,” Griffin explained. “So even in a state that is decriminalizing not just marijuana, but also other drugs, employers are still going to have some rights regarding the drug use of their employees both at work and when they’re not at work.”

Why does legislation around drug use continue to be so complex?

“There’s really no federal desire at the moment to deal with this issue, and so it’s been left to the states,” Lessig explained. “When you take a look at the case law around medical marijuana and in those places that have recreational marijuana, what you find is that many states are looking to their sister states or a few states away to try and figure out the best way to address a particular issue.”

Salary history bans

In an effort to address pay equity issues and create fair workplace policies, some states are enacting a ban on pre-employment questions regarding an applicant’s salary history.

How can hiring managers safely negotiate pay with this sort of a ban?

“The ability to have some kind of a range, if you will, where you say within this particular title, here’s what we’re going to pay, allows a level of flexibility that provides both notice to the applicant as well as some level of comfort to the organization,” Lessig said.

The importance of HR tech you can trust

It’s clear from these trends that a lot of change is coming in 2021, making it vitally important for businesses to have HR tech with an efficient, forward-thinking screening process to help them keep up with compliance and make informed hiring decisions.

“I think that 2021 is going to be ripe with an entirely new set of information and laws and regulations, probably more than we’ve seen in recent years,” Lessig said.

Get even more details on pre-employment screening trends and learn how your company can best prepare for 2021 by listening to episode 90 of HR Break Room.