Top Five Background Screening/Employment Issues of 2014

HR & Safety

‘Ban the Box,’ big data, and more

At year’s end, Angela Preston, vice president of compliance and general counsel for EmployeeScreenIQ reflects on the top five background screening and employment issues of 2014:

1. Uptick in Job Growth

Job growth is finishing strong. The U.S. economy had the biggest gain last month since January 2012, adding 321,000 jobs. Unemployment clocked in fairly low, at 5.8%. November set a new record as the 50th consecutive month of job gains, and 2014 became the best year for job creation since 1999.

2. FCRA Class Action Lawsuits

Federal laws that regulate hiring and background checks are complex: and it showed. Records were set for Fair Credit Reporting Act (FCRA) class action claims and settlements. The blitz of class action suits caught many employers and background screening companies off guard. This trend, unless checked by the courts, will likely continue into the New Year.

3. “Ban the Box” Goes Viral

“Ban the box,” the nationwide initiative to remove the check box asking about criminal history from job applications, went viral. In jurisdictions that passed a ban the box related law, employers were often also precluded from asking about criminal history until post-offer or after the initial interview. Some areas included special job-related tests and notice requirements, raising preemption issues and overlap with EEOC guidance. This patchwork of state, local, and county level laws created a legal tangle for employers everywhere. Connecticut has not yet been overtaken by this national activity, thus far only enacting restrictions on inquiries about or reliance on prior conviction of a crime regarding certain public employee job opportunities, and limiting credit checks to job openings where financial integrity is relevant to job responsibilities. Connecticut employment attorney and blogger Dan Schwartz posted comments on these local developments in 2013 and 2010.

4. Big Data in Screening and Hiring

“Big data” was to 2014 what “the cloud” was to 2013. Employers increased their reliance on technology to parse information about job candidates or employees. Big data was tapped to find candidates with the right skill sets and experience, and to predict their workplace success. Companies used big data technologies to sift through millions of smaller data sets to produce instant results at an astonishing pace. Legal and ethical issues arose regarding consent, consumer privacy, and data security. Employers must wait and see how the courts and regulators like the FTC will enforce consumer protections going forward.

5. Social Media to Recruit and Screen

Employers continued to experiment using social media to recruit, screen, and monitor employees. The EmployeeScreenIQ 2014 trends survey revealed that 38% of employers searched online media for information about their candidates. Eighty percent of those turned to LinkedIn, followed by search engines (63%) and Facebook (48%). Legal concerns including EEOC and discrimination claims, accuracy, consent, and privacy issues remain. A seemingly innocent Google search can lead employers down a risky rabbit hole. Social media will stay on the watch list for 2015

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