Screening Compliance Laws to Know for 2024
The legal landscape is ever-changing. Find out what laws are on the horizon in the new year.
Keeping up with new laws regulating employment background checks can be challenging, as background screening laws are constantly evolving. But being aware of laws that may impact your hiring process is critical for mitigating risk and conducting legally compliant background checks. To help employers prepare for the New Year, we’ve compiled an overview of noteworthy employment background check laws taking effect in 2024.
Federal changes to note
“Summary of Rights” document
Earlier in 2023, the Consumer Financial Protection Bureau announced minor changes to the “Summary of Rights under the Fair Credit Report Act” disclosure form, such as updating federal agency contact information. The updated form became effective on April 19, 2023, but employers will be required to use the new document starting March 20, 2024. The form has been automatically updated in Checkr’s platform.
Shortened Form I-9
The Immigration Reform and Control Act of 1986 mandates that US employers complete a Form I-9, issued by the United States Citizenship and Immigration Services (USCIS), for each W-2 employee, both citizens and noncitizens. Form I-9 is used to verify that employees are legally authorized to work in the US.
The USCIS recently simplified Form I-9 compliance by announcing a new, shortened Form I-9 that employers must use for new hires. (No new form is required for current employees.) Previously, completing I-9 forms required physically examining a new employee’s documents. However, recent changes to Department of Homeland Security (DHS) rules allow employers who use E-Verify to review documents remotely via video call. The new Form I-9 includes a checkbox to indicate if the documentation was examined using a DHS-authorized procedure.
EEOC guidance about AI in hiring
Artificial intelligence (AI) has the potential to streamline HR processes by automating certain steps. However, there are concerns that it could have an adverse or disparate impact on individuals protected by Title VII of the Civil Rights Act, which prohibits employment discrimination on the basis of race, color, religion, sex and national origin. In May 2023, the Equal Employment Opportunity Commission (EEOC) issued new guidance on applying Title VII to the use of automated systems, including those using AI, in employment decisions. This guidance is intended to help employers determine whether automated systems could cause unintentional discrimination.
Governments including the European Union (EU), currently working out the details of the sweeping EU AI Act, and the United Kingdom (UK), which recently hosted the UK AI Safety Summit, are working to balance consumer privacy with technological innovation. President Biden released an Executive Order in October focused on the safe, secure, and trustworthy development of AI, along with corresponding implementation guidance. Checkr is closely following national and global developments regarding AI regulation and expects additional legislative proposals, especially at the US state level.
2024
State of Screening Compliance
A new survey report highlights seven key insights into how organizations are managing background check compliance.
Clean Slate law implementation
Petition-based record expungement is costly and complex, and as a result fewer than 10% of Americans eligible for record clearance succeed in clearing their record. To support fair chance hiring, a growing number of states are implementing Clean Slate laws to enable courts to automatically expunge eligible criminal records on a large scale. Unlike Ban the Box laws, which restrict when criminal record information may be used in background checks, Clean Slate laws remove certain criminal records entirely to help eliminate barriers to employment. We can anticipate fewer Ban the Box laws and increased Clean Slate laws in the future.
Here’s an overview of state Clean Slate laws with implementation planned in the coming year:
| State | Provisions | Effective Date |
|---|---|---|
| Connecticut | Automatically erases misdemeanor convictions after seven years conviction-free, class D and E felonies and unclassified felonies after 10 years conviction-free, Class C felonies after 12 years conviction-free. | Delayed from 2023; phased implementation began in January 2024 |
| California | Automatically seals arrests not resulting in conviction and certain felony convictions after completing terms of conviction and four years conviction-free. Individuals convicted of a felony on or after January 1, 2021, can petition to have records sealed two years after completing their sentence. Does not apply to registered sex offenders. | Delayed from 2023 to 2024 |
| Colorado | Automatically seals all criminal records that defendants can petition to have sealed and that are not subject to the victims rights acts. This includes civil infractions four years after final disposition, petty offenses or misdemeanors seven years after final disposition, and eligible felonies ten years after final disposition or release from supervision, whichever is later. | July 2024 |
| Delaware | Automatically expunges all adult and juvenile charges that qualify for mandatory expungement, including: acquittals, nolle prosequi, dismissals, arrests not charged within one year of arrest, convictions for marijuana possession, and underage possession or consumption of alcohol. Certain misdemeanor convictions are eligible after five years with no prior or subsequent convictions; [KA10] certain felony convictions are eligible after ten years with no prior or subsequent convictions. | August 2024 |
| New York | Automatically seals eligible misdemeanor convictions three years after satisfaction of a sentence and eligible felony convictions three years after satisfaction of a sentence, if there is no current charge pending. Sex offenses and Class A felonies are not eligible. | Effective November 2024, with implementation effective by November 2027 |
Use of cannabis off the job
As more states legalize cannabis for medical or recreational use, laws regarding employment screenings for marijuana are evolving. If federal or state laws or industry regulations don’t require drug testing for a particular role, employers may consider whether marijuana testing is necessary as part of your hiring process. Employers should closely monitor legislation in this area and be mindful of several new state laws that prohibit employers from taking action against candidates or employees who use cannabis outside of work.
Here’s an overview of state cannabis laws with implementation planned for the coming year:
| State | Provisions | Effective Date |
|---|---|---|
| California (AB 2188) | Prohibits employment discrimination based on 1) a candidate or employee’s use of cannabis outside the workplace or 2) a drug test indicating the presence of non-psychoactive cannabis metabolites. | January 1, 2024 |
| California (SB700) | Prohibits employers from asking candidates about their prior use of cannabis or using information about a candidate or employee’s prior cannabis use obtained from a criminal history, unless state or federal law permits considering that information. | January 1, 2024 |
| Washington | Prohibits employers from making hiring decisions based on a candidate’s off-duty use of cannabis or positive pre-employment drug test results that find a candidate to have non-psychoactive cannabis metabolites in their hair, blood, urine or other bodily fluids. | January 1, 2024 |
| Minnesota | Legalized adult, recreational use and changes drug testing restrictions for employers to only allow testing for reasonable suspicion and post-accident; pre-employment and random testing is now limited to safety-sensitive positions. | May 3, 2024 |
| Rhode Island | Prohibits employers from firing or taking disciplinary action against an employee solely for an employee's private, lawful use of cannabis outside the workplace. | July 1, 2024 |
Requesting wage history
When employers consider a new hire’s prior salary in setting their wages, it can unintentionally perpetuate pay inequity. To promote comparable pay for comparable work, an increasing number of jurisdictions are passing laws that prohibit employers from requesting information about candidates’ prior wages. Employers may wish to review their job applications, employment interview procedures, and employment verification processes to support compliance with applicable salary history laws, such as the two new laws below.
| State | Provisions | Effective Date |
|---|---|---|
| Minnesota | Prohibits employers from inquiring into, considering, or requiring disclosure of a candidate's pay history during the hiring process. | January 1, 2024 |
| Columbus, OH | Prohibits employers with 15 or more employees from asking about or screening candidates based on their current or prior wages, benefits, other compensation, or salary histories. | March 1, 2024 |
Checkr supports your compliance requirements
Laws governing background checks are continually evolving, and 2024 promises to bring even more changes. Keeping pace is challenging, but essential to avoid costly missteps and legal liability. Partnering with a qualified background check provider can simplify compliance, increase efficiency, and minimize manual work for your team.
Checkr’s compliance tools combine the power of technology with the confidence of human review to help you mitigate risk. Our platform accounts for reporting regulations based on location and our team of legal experts continuously monitor changes in legislation to ensure compliance with reporting regulations.
2024
State of Screening Compliance
A new survey report highlights seven key insights into how organizations are managing background check compliance.
Disclaimer
Nothing in Checkr’s Blog should be construed as legal advice, guidance, or counsel. Companies should consult their own legal counsel about their compliance responsibilities under the FCRA and applicable state and local laws. Checkr expressly disclaims any warranties or responsibility or damages associated with or arising out of information provided.