We know how difficult it can be to navigate the ever-changing legislation around HR compliance. HireRight hosts a webinar covering emerging legislation and litigation that impact employers’ screening programs each quarter. During the webinar, we field questions directly from HR professionals. We have compiled the top questions asked during the webinar and our responses. Some questions have been edited for brevity or clarity.
Ban the Box, Fair Chance, & Clean Slate Laws
Question: Will a background report reflect that a crime was expunged due to a clean slate law?
Answer: No. Criminal convictions that are sealed or expunged are unreportable. A background report will not identify a sealed or expunged case.
Question: Is a ban-the-box law applicable to a candidate’s residence or prospective work location?
Answer: Generally, ban-the-box laws apply to a candidate’s prospective work location. However, it is advised to review each law’s specific requirements. More information can be found in our newly revised ban-the-box white paper.
Question: Can an employer refuse to hire a candidate based on an arrest concerning a violent crime that did not result in a conviction?
Answer: Employers are encouraged to review the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act. In particular, the EEOC noted that there are three factors relevant to assessing whether an exclusion is job-related for the position in question and consistent with business necessity:
- The nature and gravity of the offense or conduct;
- The time that has passed since the offense or conduct and/or completion of the sentence; and
- The nature of the job held or sought.
Further, when assessing criminal history employers should “accurately distinguish between applicants [who] pose an unacceptable level of risk and those [who] do not.
Question: When did the ban-the-box law in De Soto, Texas become effective?
Answer: De Soto’s ban-the-box law became effective January 1, 2022. It impacts employers with at least 15 individuals whose primary work location is in the City of DeSoto for each working day in each of the 20 or more calendar weeks in the current or preceding year (including agencies acting on behalf of employers. Impacted employers are prohibited from inquiring into a candidate’s criminal history until after a conditional offer of employment has been extended. It does not limit “an employer’s authority to make a hiring decision for any lawful reason, including the determination that an individual is unsuitable for the job based on an individualized assessment of the individual’s criminal history.” More information can be found in our recent blog post and ban the box white paper.
Question: When can candidates for employment in Des Moines, Iowa be asked about their criminal history?
Answer: Des Moines candidates can be asked about their criminal history after a conditional offer of employment has been extended. The Des Moines ban-the-box law became effective on November 15, 2021, and impacts any person in Des Moines employing four or more persons and any person acting directly or indirectly for an employer. More information can be found in our ban the box white paper.
Question: What are the exceptions to Washington’s ban-the-box law?
Answer: Washington’s ban the box law does not apply to:
- any employer hiring a person who will or may have unsupervised access to children under the age of 18 or a vulnerable adult or person as defined elsewhere in state law;
- any employer, including a financial institution, who is expressly permitted or required under any federal or state law to inquire into, consider, or rely on information about an applicant’s or employee’s criminal record for employment purposes;
- certain law enforcement or criminal justice agencies;
- employers seeking non-employee volunteers; or
- any entity required to comply with the rules or regulations of a self-regulatory organization, as defined in section 3(a)(26) of the Securities and Exchange Act.
All other employers are prohibited from inquiring into a candidate’s criminal history until an employer initially determines that an applicant is otherwise qualified for the position. More information can be found in our ban the box white paper.
Question: How does an employer know that criminal information reported on a background check is accurate?
Answer: The FCRA requires that consumer reporting agencies like HireRight have reasonable procedures to ensure the maximum possible accuracy of the information we report. As it relates to criminal information, HireRight has detailed procedures for matching records that are found in a search to the candidate. If the candidate believes that information has been reported that does not belong to them, they can initiate a dispute and HireRight will promptly investigate. Additionally, with respect to criminal records searches, HireRight conducts searches directly with the court to obtain the most current, up to date, and accurate information available.
As a reminder before using criminal history information to make a potentially adverse employment decision, employers are encouraged to review the information with the candidate, obtain any additional information explanation from the candidate, conduct an individualized assessment as contemplated by the EEOC and several state and local ban the box laws. The candidate would then have an opportunity to identify and dispute anything reported that is not accurate.
Question: How long does a candidate have to dispute the accuracy of their background report with the consumer reporting agency (background check vendor)?
Answer: The FCRA does not prescribe a maximum amount of time in which a candidate has to initiate a dispute with the consumer reporting agency. However, concerning the viability of a candidate with potentially adverse findings on their background report, the FTC notes, “There is no specific period of time an employer must wait after providing a pre-adverse action notice and before taking adverse action against the consumer. Some reasonable period of time must elapse, but the minimum length will vary depending on the particular circumstances involved.” In its letter to Weisberg, the FTC opined that five business days may be a reasonable amount of time. However, the timing may be impacted by a jurisdiction’s ban the box law. More information concerning the pre-adverse and adverse action process can be found in our FCRA Basics eBook.
Question: What are best practices when reviewing the compliance of background check disclosures and authorizations?
Answer: Employers are reminded that they are solely responsible for the content and compliance of the disclosure and authorization forms they choose to implement. Employers should periodically engage legal counsel to review their documents and background screening practices.
As stated in Section 604(b) of the Fair Credit Reporting Act (FCRA), when ordering a consumer report for employment purposes, end users (typically employers) must provide the subject of the report (typically a job applicant or employee) a clear, conspicuous, standalone “disclosure” and obtain their written “authorization.”
The fundamental message of the employment purpose disclosure is “We will get a consumer report about you for employment purposes.” The FCRA says the disclosure must:
- be clear and conspicuous;
- be in writing;
- be in a standalone document that consists solely of the disclosure; and
- state that a consumer report may be obtained for employment purposes.
Practically speaking, this means that an employment purpose disclosure should:
- Be easily identified and understood by the reader, and clearly state that a consumer report may be obtained for employment purposes.
- Be in writing and not given orally.
- Be its own document and not be included within an employment application or other document.
- There is one exception to this – an employment purpose consumer report authorization may be combined with the disclosure.
- Be free of any extraneous information.
- For example, the disclosure should not contain any waivers or releases of liability, state notices, or information regarding additional rights the consumer may have.
The disclosure may also briefly define the term “consumer report,” but it should not say much more than that.
The subject of the report must also give the organization their written authorization before the organization can obtain a consumer report about them. The authorization is how the consumer says, “I give you, ABC Company, permission to obtain a consumer report about me for employment purposes.” The authorization should clearly explain who is using the report and for what purpose and contain a space for a signature and date.
When an employer is ordering a report about an applicant or employee in a regulated trucking position with whom the employer only communicates via phone, mail, computer, or other similar means, unique employment-purposes requirements apply. Section 604(b) of the FCRA defines a regulated trucking position as “a position over which the Secretary of Transportation has the power to establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of Title 49, or a position subject to safety regulation by a state transportation agency”.
When this exception applies, the employer must give “notice” (instead of disclosure) and get “consent” (instead of an authorization). The notice and consent can be written, electronic, or oral, and have slightly different content requirements than the standard employment purpose requirements.
Pay Equity, Salary History Bans, & Wage Transparency Laws
Question: Where is wage transparency required?
|Jurisdiction||Effective Date||Scope||Disclose Benefits||Disclose Wage to Candidate||Disclose Wage to Employee|
|California||Jan. 1, 2018||Any employer in California||N/A||Upon request after interview||N/A|
|Cincinnati, OH||Mar. 13, 2020||Business located in Cincinnati with fifteen or more employees in Cincinnati.||Yes||Upon request after conditional job offer||N/A|
|Colorado||Jan. 1, 2021||Any employer in Colorado||Yes||In job post||In job post|
|Connecticut||Oct. 1, 2021||Any employer in Connecticut||N/A||Upon request or before compensation offer||Upon request, hire, or job change|
|Ithaca, NY||September 1, 2022||Four or more employees in Ithaca||N/A||In job post||In job post|
|Jersey City, NJ||Apr. 13, 2022||Four or more employees; principal place of business in Jersey City, NJ||Yes||In job post||In job post|
|Maryland||Oct. 1, 2020||Any employer in Maryland||N/A||Upon request after application||N/A|
|Nevada||Oct. 1, 2020||Any employer in Nevada||N/A||After interview||After application or interview for promotion or transfer|
|New York||TBD||Four or more employees||N/A||In job post||In job post|
|New York City, NY||Nov. 1, 2022||Four or more employees||No||In job post||In job post|
|Rhode Island||Jan. 1, 2023||Any employer in Rhode Island||N/A||Upon request after application & before compensation discussion||Upon request and at time of hire and promotion or transfer|
|Toledo, OH||Jan. 25, 2020||Fifteen or more employees in Toledo||N/A||Upon request after conditional offer||N/A|
|Washington||Jan. 1, 2023||Fifteen or more employees in Washington||Yes||Upon request after conditional offer||Upon request after offer of promotion or transfer|
|Westchester County, NY||Nov. 6, 2022||Four or more employees||N/A||In job post||In job post|
Question: Do wage transparency laws require that both minimum and maximum salary be disclosed?
Answer: Yes. Most wage transparency laws require that the minimum and maximum annual salary or hourly compensation range be disclosed within the job post or advertisement. The reason that a compensation range must be disclosed is to help avoid creating pay discrepancies by paying candidates outside of an established pay band.
Question: What is the scope of benefits that must be included within a compensation disclosure?
Answer: Of the jurisdictions that require that benefits be disclosed, only Colorado defines the scope of benefits that must be identified in the job post or advertisement. Colorado requires “a general description of all employment benefits the employer is offering for the position, including health care benefits, retirement benefits, any benefits permitting paid days off (including sick leave, parental leave, and paid time off or vacation benefits), and any other benefits that must be reported for federal tax purposes, but not benefits in the form of minor perks.”
Question: What constitutes a job post or advertisement?
Answer: Generally, any external or internal notice concerning a specific job. For example, a company’s job board, internet job sites, and other recruiting outlets would likely constitute a job post or advertisement. Companies utilizing social media platforms to advertise a specific job should, at minimum, link to a description of the job that includes a salary range as required by a specific jurisdiction’s wage transparency law. General “help wanted” calls for labor that do not identify a specific job are not included within the scope of wage transparency laws.
Question: Can we disclose salary/wage range and benefits for all postings for new jobs, promotions, or transfers, regardless of the local or state law?
Answer: Yes. Employers can choose to adopt wage transparency across their organization even if not required by a jurisdiction.
Question: If an employer has worksites throughout New York state, including within New York City, must a salary range be included in a job posting?
Answer: The Governor of New York has not yet signed a law that applies to all employers within the state. However, if an employer has at least four employees in New York City any job that can be performed within New York City will be subject to a wage transparency requirement as of November 2022.
Question: What are the specifics of New York City’s wage transparency law?
Answer: In January 2022, the New York City Council passed Int. 1208-2018, which amends the New York City Human Rights Law and requires employers with four or more workers in New York City to post the minimum and maximum pay range for any job within the city. Guidance published by the New York City Commission on Human Rights clarified the scope of the law and its applicability to remote workers. More information can be found in our posts here and here.
Question: What are the specifics of Washington’s wage transparency law?
Answer: Washington’s wage transparency requirements apply to employers with 15 or more employees. Employers must disclose the wage scale or salary range and a general description of all benefits and other compensation to be offered. Employees offered an internal transfer or promotion must be provided the wage scale or salary range for the new position upon request. Washington’s wage transparency law becomes effective on January 1, 2023.
Question: How do wage transparency laws impact California employers?
Answer: In 2018, California passed a wage transparency law that required employers to provide candidates with a pay scale upon request after an interview. If passed, a bill currently before the California legislature will require that many employers post salary ranges in job advertisements, as well as publicly report data about how employees are paid.
HireRight’s 2022 Q3 Compliance Webinar
This fall, you to register for our upcoming Q2 compliance webinar presented on Tuesday, October, 2022, at 11 AM PST. All registrants will get a link to a recording of the webinar. Live attendees will receive 1.0 general recertification credit hour toward PHR, SPHR, and GPHR through the HR Certification Institute. We hope you’ll join us!