How To Navigate Shifting Hiring Regulations

Efforts at criminal justice reform, privacy laws to fight discrimination, differences between state, federal and local laws—new regulations are making compliance more challenging than ever. Here’s how to handle the changes.

Conflicting laws across the country pertaining to the hiring process such as “ban the box” and “fair chance” initiatives designed for criminal justice reform, make it even more challenging for employers operating in multiple states to remain in compliance. Then there are recent privacy initiatives that have resulted in birth dates being redacted from some court systems and more.

Katie Kulp, vice president of U.S. compliance at Certn, a Victoria, Canada-based company that provides employee background checks, has advice for HR leaders. She spoke with StrategicCHRO360 about what’s going on, the impact is having on hiring and retention during the Great Resignation and the key to navigating these changes gracefully.

How does changing regulation add challenges for organizations conducting background screening for candidates and/or employees?

The ever-changing regulatory landscape has seemingly created an unwanted juggling match for most employers nationwide in recent years. Even with the best of intentions, it has become increasingly difficult for organizations to successfully balance the task of performing diligent background checks on new candidates, conduct those checks compliantly and also complete the checks with enough timeliness to keep candidates engaged long enough to accept a job. These obstacles come from both the increased compilation of federal, state and local background screening laws employers face today and recent data access issues within the county court systems. 

Criminal justice reform has had a strong presence over the last few years with new “ban the box” and “fair chance” laws. These types of laws impact the box on the application asking applicants if they have ever been convicted of a crime, conditional offer timing, types of criminal records that can be considered during decisions and individualized assessment requirements, among other employer hiring processes. These exist at the federal, state and local levels across the nation, often conflicting with one another depending on the jurisdiction where candidates will live or work or the employer’s location. While these laws have been key to improving fairness for candidates in the process of background checks, they also present new challenges and compliance requirements organizations must contend with. 

In addition, recent privacy initiatives have resulted in date of birth redaction from some court systems across the United States. California and Michigan, for example, are two of the most recently impacted areas. Without identifiers to appropriately match records to candidates, it makes it tricky for background screening providers to complete accurate and timely checks for employers, often causing candidates to lose interest and drop from the candidate pool. Given the prevalence of the talent shortage, time is of the essence.

In what ways might these added challenges take a toll on the candidate experience? Why?

Extra layers of regulation tend to bog down the background screening process, causing delays and adding extra strain for candidates. The goal is always to make the process as streamlined as possible and ensure the optimal candidate experience.

What key tips would you provide to HR pros and organizations coping with changes in regulation that impact background screening? 

Those responsible for hiring and conducting background checks must ensure they have a transparent relationship with their screening provider when it comes to regulatory changes. An organization’s background screening provider should communicate timely regulatory updates and provide educational resources regularly. Additionally, HR pros and organizations should fully engage with counsel to ensure its hiring policies and procedures are created and maintained in alignment with the federal, state and local laws that apply to their company.

How can employers prepare to ensure these ongoing changes aren’t impacting the candidate experience?

Additionally, ensuring an organization is using the most up-to-date screening technology through their provider is of equal importance. Doing so ensures the best turnaround time for checks and a seamless experience for candidates while trying to meet the necessary compliance requirements. Notwithstanding the ever-changing regulations, the background check process can be made less onerous for applicants with extra attention given to these areas.

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