Companies are increasingly faced with class actions for alleged violations of one of the “big three” —the Telephone Consumer Protection Act (TCPA), Fair Debt Collection Practices Act (FDCPA), or the Fair Credit Reporting Act (FCRA). Although several thousand of these claims are filed each year, FCRA claims related to background checks is the only category that has grown since last year.
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.