Background checking laws are constantly changing, and it is important for employers to keep up with changes in each location in which they conduct business. It is also worth noting that laws and regulations can vary by state, county, and even by city.
The Professional Background Screening Association (PBSA), of which ASE is a member, has highlighted these recent changes:
- San Francisco, CA has a Fair Chance Ordinance that regulates how criminal background checks can be used in making employment decisions for employers with 5 or more employees. This ordinance was amended and the amendment went into effect on August 10th of this year.
The amendment adds restrictions on how employers can use criminal records from other states when the behavior responsible for the convictions or arrests is legal in California. These items are:
- Abortion-related healthcare
- Drag performances
- Gender-affirming care
- Spontaneous abortion (miscarriage)
The penalties for violations of the ordinance have doubled. Some of the charges are per violation and some of them are for a violation per person per day which can add up quickly. While the state has a very specific process for individual assessments regarding criminal records before any adverse action can be taken. In San Francisco the above listed items cannot be part of that assessment.
- Washington has a Fair Chance Act that applies to employers with 15 or more employees currently but will extend to all employers on July 1, 2027. The act addresses employers who run criminal background checks and restricts them from asking applicants about criminal records until a conditional offer of employment has been made. While this sounds like a ban-the-box law, the Act prohibits employers from disqualifying applicants with records across the board.
The Act also requires a process very similar to the FCRA pre-adverse/adverse action process, however, it differs in that in addition to informing applicants of the potential adverse action employers must also inform applicants that the decision was based on a “legitimate business reason” and then give the applicant 2 business days to respond to the item in question. If the employers goes forward with the adverse action, they must “give the applicant ‘a written decision, specific supporting documentation, and its assessment of each of the relevant factors, “including the impact of the conviction on the position or business operations[..] and its consideration of the applicant’s or employee’s rehabilitation, good conduct, work experience, education, and training.’”
When these changes occur, employers must also review all of the policies and procedures regarding their background checking practices, make updates as required, and train all staff involved on the updates.
Source: PBSA weekly newsletter