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Employment Privacy Blog

News, commentary, and legal updates from attorneys in the Data Security and Workplace Privacy Practice Group at Fisher Phillips.

Most companies perform background checks on employees at the outset as part of the application / new hire process. A number of background check companies are now offering “continuous screening” or re-screening services as a risk management tool where background checks are performed on all employees annually or semi-annually. Continuous background checks are gaining popularity among employers. In theory, this will catch items that were missed during the new hire process as well as criminal events that have transpired since the employee was hired. This is viewed as a risk management tool to protect against employee theft, embezzlement, fraud, violence, etc.

Nationwide, there are approximately 29 states and over 150 cities and counties that have adopted some form of “ban the box” legislation.  Although the legislation varies from one jurisdiction to the other, typically it requires employers to remove the criminal history check box from employment applications.  This does not prevent employers from asking about criminal history, but it does limit when an employer can ask.  Proponents believe that banning the box helps balance the inequities faced by convicted felons who are attempting to re-enter into the workforce; giving them a “fair chance.”

Background checks have been a tool for employers to use to screen applicants for quite some time.  However, recently there have been many changes and an increase in litigation in the background check arena.

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