Report Reveals Employers’ Top Legislative Concerns Related to Screening

Understanding the complex web of state-, county-, and city-level legislation that impacts background check compliance can be challenging for employers. To discover which background check-related laws are most concerning for employers, Checkr’s 2024 State of Screening Compliance report polled 1,000 employees involved in background check processes (who are not Checkr customers). Respondents reported their top concerns are:

While all of these laws have positive goals, like protecting consumer privacy and supporting employment opportunities for justice-impacted individuals, it’s not surprising they can cause difficulties for employers. There’s often confusion around what the laws dictate and how they may impact background screenings. Laws oftentimes vary from location to location and sometimes overlap or conflict with each other. 

Check out our State of Screening Compliance report to get more insights into background check laws and what they mean for employers—and read on to learn how you can support compliance with fair chance, record clearance, and data redaction laws.

Designed to give justice-impacted candidates (those with criminal records) a fair chance at employment, the earliest Ban the Box laws prohibited asking about criminal history on employment applications. Today, the Ban the Box movement has evolved into a complex web of federal, state, and local laws (sometimes called Second Chance or Fair Chance laws). Currently, 37 states and 190 counties and cities have Ban the Box laws. In addition to prohibiting inquiries about criminal records on job applications, many of these laws regulate when employers may legally conduct a criminal background check or have specific requirements for how to follow adverse action.

Following the requirements of multiple Ban the Box laws can be complicated, particularly for employers hiring in numerous locations. Here’s one of the more complicated examples:

If an employer seeks to hire in New York City, even one employee, they're faced with an intricate and multi-layered process. New York’s statewide Ban the Box law requires public-sector employers and private employers with 10 or more employees to individually assess candidates with criminal histories in light of the job. There’s also a New York City Fair Chance Act, which prohibits employers with four or more employees (and at least one employee in New York City) from performing criminal background checks until after making a conditional offer of employment. Finally, the New York City Human Rights Local Law 4 recommends (but does not require) employers conduct all other background checks, such as employment and education verification, before performing criminal background checks—in essence, creating a two-step background check process. 

It’s easy to see why Ban the Box laws top the list of employer concerns when it comes to managing background check compliance. 

Some 79 million US adults have an arrest or conviction history, and even after completing their sentences, many find it difficult to find gainful employment. Many states have laws allowing individuals to petition to have certain criminal records expunged. However, the process is typically time-consuming, confusing, and costly, and thus fewer than 10% of Americans are successful in getting eligible petition-based records cleared. To streamline record clearance and open the job market to more justice-impacted individuals, a growing number of states have implemented or are considering Clean Slate laws.

Clean Slate laws automatically expunge certain criminal records when specific conditions are met, without requiring action on the part of the individual. Twelve states currently have Clean Slate laws, and more are being introduced each year. Clean Slate laws can vary widely in which records are eligible for clearance, the criteria for clearance, and how the records are removed. Each state is different. 

Adding to the complexity of record clearance laws, there’s typically a delay between the effective date of the law and when the technology enabling automated clearance is implemented. Courts without digitized records may have additional delays between approving a record clearance and updating the record. For example, Michigan county court records were temporarily inaccessible to the public in April 2023 while courts worked to manually identify convictions that were eligible for expungement. Such delays can have a significant impact on timely background checks. 

Increasing concerns over consumer privacy have led some county courts to redact full dates of birth from public records. While privacy is a worthy goal, these laws have had unintended consequences for employers. Background check providers access court records and use a candidate’s first and last name and full date of birth to confirm a match since searching for an individual with only their name and part of their birthdate—like March 1985–may return multiple records.  

The result? In some counties, this creates background check bottlenecks, which can impact employers’ ability to hire and onboard new employees. Los Angeles County—the largest county in California—is one jurisdiction redacting date of birth and driver’s license numbers from searchable public records. Without this information, county clerks may be required to review records manually and verify a match, slowing down background check turnaround times. 

Employers we surveyed say keeping up with new screening laws is a major concern when conducting background checks. In fact, more than half (51%) of our survey respondents are not completely confident their background check policy complies with federal, state, and local regulations.

Monitoring legislative developments, regularly updating your background check policy, obtaining guidance from legal counsel, and working with a compliance-minded background check provider, like Checkr, can help support compliance with screening laws in multiple states. Get more insights into how organizations like yours handle evolving legislation in Checkr’s State of Screening Compliance report.

2024

State of Screening Compliance

A new survey report highlights seven key insights into how organizations are managing background check compliance.

Read the report

About the author

Karen Axelton writes about business topics and best practices. She has written hundreds of articles on business subjects, including background screening, hiring and employment trends, human resource management, and the use of technology in the workplace. Her work includes educational articles, e-books, white papers, and case studies.