Remote work has given employers the opportunity to hire employees across different cities and states, expanding their talent pools beyond the physical office — but this also means employers'
Forty-seven percent of organizations are uncertain whether their
"A patchwork of different states are putting out their own laws because there isn't one that's meeting their needs at the federal level," says Sara Korolevich, head of digital content at Checkr. "If I'm in Arizona, but I'm hiring an employee in California, there's a bunch of laws I need to follow in California that apply to that candidate. So it's difficult to keep track of all the different legislation that might be applied in all of the different places [employers] are hiring."
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For example, five states have officially implemented clean slate laws, allowing eligible individuals to have their criminal records sealed or expunged to lessen their barriers to employment. However, these laws are not standardized across the country: Two candidates from two different states could have the same criminal record and apply for the same position, but only one candidate's background check would be clear, depending on whether that state has a clean slate law in place.
"The idea is to get people to work by completely removing some of these eligible criminal records so that employers don't even see them, which is great," says Korolevich. "But it makes it a bit challenging for employers because they may not understand why certain records are showing for candidates in certain states."
Korolevich advises employers to know how each state's clean slate law differs and what records they should not expect to have access to. From there, they should consider if the crimes sealed in other states are worth denying a great candidate in a state without a clean slate law.
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Clean slates are relatively new to the screening scene, but it's not just newness and inconsistency that's causing organizations confusion. Notably, all employers are required to comply with the Fair Crediting Report Act, which demands that companies follow a certain process after rejecting a candidate due to the results of their background check — for instance, candidates have the right to review background check information for mistakes and to know if their background check had an adverse effect on their application. But according to Checkr, 70% of survey respondents stated they don't always comply with this rule.
"The reason these laws are there is because the background check can have a meaningful impact on individuals' lives," says Korolevich. "Candidates should have the opportunity to see what appeared on their background check and potentially explain the context, or point out some error on it."
Given this compliance challenge, it's unsurprising that Checkr found 62% of employers feel they may be overlooking a key part of the Equal Employment Opportunity Commission (EEOC) guidance to hiring. The EEOC's "nature-time-nature" test asks that employers consider the nature of a candidate's criminal offense, the time passed since conviction and the relevance of that offense to the job at hand.
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Half of companies are not completely confident they have the policies and procedures in place to prevent discriminatory hiring, according to Checkr; one step towards amending that would be to follow the federal regulations and guidance already in place, says Korolevich.
"We want organizations to use background checks if they're right for their business and the roles they're hiring for, but we also want them to take a moment and understand how to use them properly, so they can avoid potential violations and discrimination," she says. "Have a background check policy in place and ensure that candidates and your employees understand why they're being done and how they're being done consistently across the organization."
