As an HR professional, you know that employment background check laws are constantly in flux. You must keep current with the changes in the regulations and laws to ensure your company remains compliant.
Even unintentional violations of the background check laws could expose your business to legal liability, penalties, and reputational harm.
Several new employment background check laws and regulations have recently gone into effect at the local, state, and federal levels, and they might change your screening procedures.
Based on our experience conducting employment background checks for employers across the U.S., we wrote this guide covering the new laws you should know about in 2023.
Background Check Laws in Effect in 2023
1. Fair Chance to Compete for Jobs Act of 2019
The Fair Chance to Compete for Jobs Act of 2019 (Fair Chance Act) was added to the National Defense Authorization Act of 2020 and signed into law by former President Donald Trump. This law went into effect on Dec. 20, 2021.
The Fair Chance Act is a federal ban-the-box law that covers federal agencies and employers that have civilian or defense contracts with the federal government.
Under this law, covered employers are prohibited from asking prospective job candidates about their criminal history before they extend conditional offers of employment.
There are some exceptions to this law, including the following:
- Jobs requiring a security clearance
- Positions with law enforcement duties
- National security positions
- Jobs for which employers are legally required to consider criminal history information by other laws or regulations
The Fair Chance Act also prohibits employers from trying to find this type of information from other sources before making conditional job offers.
State and Local Laws
If your company operates in one of the states or municipalities listed below, make sure you comply with these new laws.
1. Connecticut Marijuana Use Consideration
Connecticut Gov. Ned Lamont signed SB 1201 into law on June 22, 2021. This law legalized the recreational use of cannabis and also enacted some important changes for employers.
Under the new recreational cannabis law, employers will be prohibited from taking adverse employment action against employees or job applicants for off-duty or pre-hire marijuana use beginning on July 1, 2022.
Covered employers cannot prohibit non-exempt employees from using marijuana when they are off duty.
The law still allows employers to maintain a drug-free work environment, however.
Employers can take adverse action against employees who are impaired by marijuana at work or who use it at work.
However, employers must have a written drug testing policy to take adverse action based on reasonable suspicion of at-work drug use or impairment.
Employers in certain industries are exempt from the employment requirements of this law, including manufacturing, healthcare, jobs requiring driving, jobs supervising children, and those that affect public safety.
2. Virginia Cannabis Oil Law
Former Virginia Governor Ralph Northam signed HB 1862 into law on March 25, 2021, which was effective beginning on July 1, 2021.
This law prohibits employers from making adverse job decisions for current employees or job applicants based on their lawful use of medical cannabis oil.
Employees or applicants must provide a practitioner’s written certification that they are being treated with cannabis oil for medical conditions.
Employers can still take adverse action against current employees when they are impaired at work by their use of medical cannabis oil and can prohibit the possession or use of it during work hours.
Employers are not required to do anything that might violate federal law, result in the loss of federal funding or contracts, or retain or hire employees or applicants who test positive for THC in excess levels in defense jobs.
3. Pennsylvania Appellate Decision
As previously discussed in our blog about new laws in Pennsylvania, the Pennsylvania Superior Court’s decision in Palmiter v. Commonwealth Health Systems, 2021 PA Super 159 (2021) substantially changed how employers can handle pre-employment drug tests for marijuana for medical marijuana users.
The court found that 35 P.S. Health and Safety § 10231.2103 of the Pennsylvania Medical Marijuana Act allows employees and applicants who are medical marijuana users to file lawsuits against employers that base adverse employment decisions on their use of marijuana.
Employers can’t take adverse employment actions against certified medical marijuana users based on positive marijuana drug tests under this law.
4. Philadelphia Ban on Pre-Employment Marijuana Drug Tests
Philadelphia Code Chapter 9-4700 was passed by the Philadelphia City Council on April 22, 2021, and was effective on Jan. 1, 2022.
Under this ordinance, employers in Philadelphia are prohibited from conducting pre-employment marijuana drug tests.
This law applies to private employers, labor organizations, and employment agencies when they extend conditional employment offers based on drug tests.
The following types of employers are exempted under this new ordinance:
- Law enforcement
- Employers engaged in providing care for vulnerable populations, including people with disabilities, children, medical patients, and others
- Employers hiring for positions requiring commercial driver’s licenses
- Employers hiring for positions that could affect public health and safety
Drug testing required by other federal or state laws for security or safety reasons is also exempted.
Federal contractors that are required to conduct pre-employment drug screens to receive contracts or grants and those with collective bargaining agreements that call for drug tests as a condition of employment are also exempt.
Ban-the-Box and Fair Chance Hiring Laws
Multiple states have enacted ban-the-box and fair chance hiring laws.
Louisiana Governor John Bel Edwards signed HB 707/Act 406 into law on June 16, 2021, with an effective date of Aug. 1, 2021. This law is a fair chance hiring law.
Under the Act, employers are prohibited from asking for or considering arrest records not resulting in convictions to make hiring decisions.
Employers are allowed to consider the criminal history of job applicants only when they individually assess records in direct relationship to the duties required by the positions.
Job applicants can request copies of their background screening reports in writing under the law, and employers must provide copies to the applicants when the applicants request them.
Maine Governor Janet Mills signed LD 1167/HP 845 into law on July 6, 2021. This law is a ban-the-box law that was effective as of Oct. 18, 2021.
Under the law, employers are prohibited from asking applicants about criminal history information on their applications.
Employers also can’t include statements that discourage applicants with criminal records from applying in their job advertisements.
The law includes the following exceptions:
When state or federal laws or regulations mandate that certain criminal convictions disqualify applicants from consideration
When state or federal laws prohibit employers from hiring applicants who have been convicted of specific offenses
When state or federal laws require certain employers to conduct criminal background checks
Employers who violate Maine’s ban-the-box law can face fines ranging from $100 to $500 per violation.
Colorado passed the Chance to Compete Act in 2019, and it was effective for employers with 11 or more employees on Sept. 1, 2019.
The Chance to Compete Act became effective for all employers regardless of size on Sept. 1, 2021.
Under this law, employers cannot do the following things:
- Include statements in job advertisements that applicants with criminal records can’t apply
- Include statements on applications that applicants with criminal records can’t apply
- Ask about criminal history information on initial applications
Philadelphia amended its Fair Criminal Record Screening Standards ordinance and expanded it to include gig workers, independent contractors, and current employees.
This amendment was effective on April 1, 2021. Employers are prohibited from asking candidates about criminal history information on applications.
They cannot conduct criminal background checks until they have made conditional job offers.
5. New York City
New York City initially passed the Fair Chance Act in 2015. Amendments to the law became effective on July 29, 2021.
Under the amended Fair Chance Act, employers can’t perform criminal background checks until after they extend conditional job offers. They must conduct other types of pre-employment screens before making conditional offers.
This means that employers should split their pre-employment background checks into two phases.
Birth Date Redaction Laws
Two states passed birth date redaction laws in 2021.
As we previously noted, the California Court of Appeal made background checks more difficult in its decision in All of Us or None of Us v. Hamrick, 64 Cal.App.5th 751 (2021).
This decision found that the inclusion of identifiers on publicly available criminal court records is prohibited by Cal. Ct. Rule 2.507 and ordered court clerks to redact birth dates and driver’s license numbers.
Employers should work with an experienced pre-employment background check company like Accurate Investigation Services to conduct comprehensive employment background checks.
As we previously reported, the Michigan Supreme Court issued two court rules that would have required court clerks to redact dates of birth from court records beginning on Jan. 1, 2022.
The Supreme Court revised the court rules to allow employers to access birth dates on criminal court records for identity matching as long as the applicant consents.
Volunteer Background Checks
California AB 506 became effective on Jan. 1, 2022.
Under this law, all volunteers, employees, and administrators of organizations that provide services to youth must be subjected to background checks.
Any volunteers, employees, or administrators who are revealed to have a history of child abuse or neglect must be excluded from employment.
Salary History Ban
Nevada SB 293 was effective on Oct. 1, 2021. Under this law, employers are prohibited from asking applicants about their salary history information to make hiring decisions.
Employers also cannot consider salary information a candidate has voluntarily disclosed to determine whether to hire or the salary to offer.
Accurate Investigation Services: Your Partner for Employment Background Checks
Employment background checks help to ensure your employees are qualified for their jobs and that you make safe and smart hiring decisions.
If you conduct employment background checks, you must ensure you comply with all relevant laws. Since laws frequently change, this can be difficult.
At Accurate Investigation Services, we stay up-to-date with employment background check laws and ensure that our background check reports are legally compliant.