2020 and 2021 have ushered in record transformations in the workforce, making upcoming HR staffing trends important to spot now in order to smoothly pivot staffing teams for success. Here are the major workforce trends we’ve seen that HR teams can bear in mind as they work to hire candidates while also being mindful of the need for safety in the workplace.

As SIA reported last year, contingent workers made up more than a third (35%) of the labor market in 2020. While it’s true that businesses can meet increased demand by quickly hiring contingent workers, an incomplete onboarding process can also present serious risks to workplace safety.

Traditionally, staffing organizations have focused on background screening their full-time employees rather than including the contingent workforce as a whole. Unfortunately, as the remote worker population has spiked, so has identity fraud. According to the Aite Group’s report, U.S. Identity Theft: The Stark Reality, identity theft cases caused over $500 billion in losses in 2019 and ballooned by 42% to over $712 billion in 2020. We believe it’s critically important to build a consistent hiring program (regardless of your workforce population) when conducting background checks. For example, remote contractors often use proprietary business equipment, networks and tools from their homes. These unsecured areas pose a real security risk to a company’s operations and brand.

Identity verification has only become more important as the workforce continues its slow flight from the office. Forbes cites a 2021 Accenture report which found that 83% of workers surveyed preferred a hybrid model allowing them to work remotely at least a quarter of the time. There’s also an increasing risk that candidates using stolen IDs will pass easily through a standard background check. According to a study of HR professionals conducted by HR.com, one in five of those responding reported instances of candidate or worker identity fraud at their organization. It’s a common misconception that a background check automatically verifies an applicant’s identity. After all, candidates may be using someone else’s stolen personal information, bought from a webpage for just a few dollars.

PREMIUM CONTENT: North America Internal Staff Survey 2022: Use of Technology by Staff: Training Needed and Types of Automation that Would Help Staff the Most

In our view, identity verification has become vital — not just in 2022, but beyond — in order to build a safe and successful workplace. HR staffing teams should think more broadly about how identity checks will promote trust and safety in the workplace, both physical and remote.

According to Sterling’s SIA webinar produced in February of this year in partnership with Pro Unlimited, staffing firms will need more accurate data in order to drive accelerated placement of top talent. Inaccurate candidate data can produce erroneous background check results, and these errors can snowball to impact the integrity of the rest of your candidates’ life cycle, from hiring to onboarding. Identity verification helps to support data integrity by capturing accurate data on the front end of the talent acquisition process.

Ultimately, to help determine if their candidates are authentic, employers should focus on ensuring that digital identity verification is an element of their onboarding process. However, identity verification is not a standard part of the background screening process, though many HR professionals assume that it is. Instead, identity verification is a separate component that requires modern, fast and agile technology.

Digital ID verification technology can also add efficiency to the onboarding process. “Identity verification tools drive data accuracy and put candidates in control of their information, helping to speed up hiring and onboarding while delivering a frictionless candidate experience,” says Blake Hall, ID.me founder and CEO. Identity verification also has a downstream effect: By offering candidates a secure way to prove their identity using their smartphone (much like a digital wallet), HR staffing teams provide a positive candidate experience, which can in turn improve the hiring process and increase candidate retention.

The rise of contingent workers in the modern workforce is a trend that’s likely to continue throughout 2022. Identity verification can and should be designed at the very start of the background screening process to give staffing managers proof that candidates are who they say they are. Companies who integrate identity verification into their onboarding process can help to mitigate corporate risk, gain confidence when hiring and ultimately promote trust and safety in their workplace.

Resume fraud is a concern both for job seekers and employers. Here’s what you need to know.

A resume is the first opportunity a job seeker has to leave a lasting impression on their potential employer — and according to a recent survey, some are more willing than others to gain an edge through less savory means, if it results in getting their foot in the door.

According to the Monster Future of Work: 2021 Outlook survey, 66% of hiring employers agreed that candidates exaggerate or even lie about skills and competencies listed on their resume, while 44% say that candidates stretch the truth about other aspects, such as dates of employment, reason for leaving, or even job title. But even if these exaggerations aren’t uncovered during the interview process, the truth is likely to come out during background checks for employment. With this in mind, what do job seekers and employers need to know about resume fraud, and how can both groups help make certain they know their rights during the background check process?

What are Background Checks for Employment?

A background check for employment is another step in the pre-employment background check. The separate components of a pre-employment check help organizations get a better overall picture of their candidates and give them the insight they need to make an informed hiring decision. Background checks for employment can add to that insight.

In addition to a background check and education check, background checks for employment services contact the past employer’s human resources and payroll departments to make sure that the candidate’s information is both factual and without personal bias. These types of background checks compare information on the resume against information directly from the source to see if there are differences in prior positions held, job titles, dates of employment, and reasons for leaving. By cross-referencing this information with details provided by a candidate, employers will both verify the candidate’s work experience — and depending on how it matches up against what’s listed on the candidate’s resume — gain some early insight into their integrity.

Job seekers take note: this is one of the main ways employers can help determine if their candidates are actually who they claim to be! Since any discrepancy found on your resume during the application process is likely to get your resume moved to the bottom of the pile, it’s best to be as truthful as possible when listing your credentials.

What is Needed for a Background Check for Employment?

The surest way for job seekers to prove that their credentials are valid is to first learn exactly what documents they’ll need to present to employers during a background screen. The exact information needed for a background check for employment will vary depending on a company’s needs and the role’s responsibilities. Some companies will require more detail about employment background, depending on the role they are hiring for. But in general, in addition to the information a candidate provides for a criminal record check (social security number, birthday, any known alias, current and past addresses, and driver’s license number) a candidate may be asked to provide the following information during a background check for employment:

• The name, address, and contact information of past employers
• Dates of employment at previous employers

If past employers cannot be reached, some companies will request proof of employment through a W2 or a pay stub from a previous employer — although this will vary based on local laws.

Do You Have the Right to Know the Results of Your Background Check?

Third-party background check companies are regulated by federal, state, and local laws. At the federal level, background checks for employment are regulated by Fair Credit Reporting Act (FCRA) guidelines.

The FCRA requires companies to disclose their intention to perform a background check on an applicant, and first obtain authorization prior to performing the background check. This must be made clear beforehand, and authorization should be obtained in writing. The job seeker also has a right to know the results of that background check regardless of whether or not it results in a rescinded offer: “(Even) If the employer thinks it might not hire or retain you because of something in the report, it must give you a copy of the report and a ‘notice of rights’ that tells you how to contact the company that made the report.” This gives the job seeker the opportunity to fix any unintentional errors, such as mistakes in data entry.

Conclusion

There are many aspects to a background screen — from criminal record checks to education and background checks for employment. Naturally, each company will require different checks for the positions they’re filing. With this in mind, you can get an early step ahead of other candidates by first understanding exactly what information you need to have prepared for your background check in order to help reduce the turnaround time. Knowing your rights as an applicant can provide you with added transparency: remember that you can choose to view the results of your check if you believe it was conducted unfairly, or if you’d like to see the detailed report for yourself.

It’s important for job candidates to know that even outside of a background check, exaggerations on their resume will likely be surfaced somewhere in the hiring process — and that it is important to be honest and open from the beginning of the process in order to build trust with their potential employer, as well as avoid potentially larger consequences down the road. For other questions about the background check process, check out our candidate FAQs and client FAQs.

Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.

Effective Thursday, February 24, 2022, Sterling is anticipating significant suspensions or delays with our public records and verification services in the Ukraine and potentially in the adjacent region. A state of emergency has been declared and many non-essential government offices and businesses are currently closed while other government offices, educational institutions and companies are working on reduced staff.

The following Ukraine services are either temporarily suspended or significant delays are anticipated: 

Public Records

Criminal Records: The Ministry of Internal Affairs has suspended their criminal records checks service until further notice. During this suspension, Sterling is not able to offer our Nationwide Police Criminal History Check as well as the Police Clearance Authentication services.

Credit Report: The Ukrainian Credit Bureau of Histories is currently operational but is expected to experience delays over the foreseeable future.

Directorship Search: The State Enterprise Information Resource Centre Business Directory is not currently operational and we anticipate delays.

Verifications

Employment Verification: Many non-essential businesses are currently closed or working on reduced staff and, depending upon their location, may be impacted by political unrest. We will continue to attempt verifications, but expect delays.

Education Verification and Professional Credentials: Many educational institutions are operating on reduced administrative staff and, depending upon their location, may be impacted by political unrest. We will continue to attempt verifications, but expect delays. Possible exceptions are degrees issued after the year 2000, which may be verified online via the Ministry of Education.

Please note that identity and database services are not currently experiencing any delays. However, the availability of services in Russia and the adjacent region may be impacted by world events, including sanctions placed in response to the evolving conflict. Sterling will provide impact updates and any alternate search options that become available. Thank you for your patience. 

It’s often hard for HR compliance teams to find the time to keep current on upcoming background screening trends. How can you spot major regulatory issues early enough and put plans in place to overcome major compliance challenges? With this in mind, Sterling produced an end-of-year compliance webinar on December 16, 2021, “Background Screening Trends in 2022: Key Trends to Know,” now available on-demand. This insightful discussion featured Angela Preston, Sterling’s Senior VP and Counsel for Corporate Ethics & Compliance, and Chris Christian, Director of Compliance at Sterling. Together they pinpointed evolving 2022 trends in background screening, including fair chance/ban-the-box, new state privacy laws, and Covid-19 testing and vaccine mandates. Uncover the 2022 trends they showcased and learn actionable ways to help keep your business compliant while promoting trust and safety in your workplace.

Hosted and moderated by Sterling’s Social Media Manager, Katelyn Brower, the webinar quickly started off as Katelyn polled attendees, asking if they feel confident in their background screening compliance processes going into 2022. The result? Most of our audience (72%) said yes, while over a quarter (28%) said no. After seeing proof of the audience’s need for more insights into HR compliance, Katelyn introduced our panelists, who quickly began to explore 2022’s major background screening trends, outlined below.

Fair Chance/Ban-the-Box Laws

In the United States, shifts in societal and criminal justice perspectives have led to new laws and provisions affecting criminal background screening. That’s why Chris Christian began the webinar by discussing emerging ban-the-box laws prohibiting employers from asking about criminal history during the hiring process. “That’s why today’s job applications can only focus on job application questions. Along with this we’ve also seen the EEOC (Equal Employment Opportunity Commission) enforcement guidance for a consideration of criminal history records and employment decisions, which recommended that employers conduct an individualized assessment to determine what, if any, criminal history can be legally related to the job. Since then, we’ve seen a variety of different models of fair chance laws emerge.”

Chris outlined that, from a 2022 trend standpoint, the latest compliance trend in this area is that some state and local jurisdictions are layering in their own unique requirements by requiring specific steps in the screening process. However, this is making these laws much more complex for employers trying to stay in compliance.

Chris expanded on this topic: “There’s an additional trend here that we’re seeing: jurisdictions are expanding their existing laws and imposing new, more stringent requirements than the original version of the law. There are about 35 states and many cities and counties that have already adopted some variation of fair chance. Private employers are already being affected by these (and many other) ban-the-box laws. The first one we’ve noted is the move toward more advanced EEOC- style individualized assessments, basically requiring additional individual assessment factors to consider, or different than what the EEOC has published. Another trend here is the introduction of specific forms and notices, such as Los Angeles and New York City. They have prescribed specific forms which need to be implemented into the employer’s screening process.”

Chris also covered another example, adverse action, which includes notice content and timing. For example, there’s additional or different information from the FCRA (Fair Credit Reporting Act) as far as content in adverse action notices (both pre- and final notice) and also regarding timing. “Requirements between the pre-notice and the final notice setting, for example, specific time frames, give the consumer time between the first and the second notice. Another trend that we’re seeing here is these laws are basically specifying timing for when screening may occur after an interview or an unconditional offer of employment.”

Chris concluded with the takeaways for 2022’s fair chance/ban-the-box compliance trends:

• Closely examine and review your background screening processes and policies in light of these and other new laws.
• Reassess any screening procedures you’ve put in place in your jurisdiction at the time the original laws were introduced. Consult with legal counsel about your processes in your jurisdictions if they’re applicable to your hiring locations.

Angela Preston added that even if you don’t have a physical location in one of these jurisdictions, the new trend around remote work means that you need to take into account whether or not you have remote employees who work from these jurisdictions, because often the law will also apply to those employees. “Actions may be covered under these state or local provisions which are specific to a jurisdiction or a geographic area, so these trends are now overlapping to create new challenges for employers, especially if you are conducting enterprise hiring on a national level and have to take into account different jurisdictional considerations.”

State Privacy Laws

Privacy is on everyone’s mind in recent years, including critical issues arising from the use of Facebook metadata, PII (personally identifiable information) data leaks, and the government’s response to these issues. Chris began his look at this topic by explaining that historically, the US has operated under a patchwork made up of a few state and federal sector-specific compliance rule laws. A common example is HIPAA (Health Insurance Portability and Accountability Act) as it applies to TPAs (Third-Party Administrators). However, the US has never had a single federal comprehensive privacy law.

Chris continued, “Right now at the state level, there’s momentum for comprehensive privacy bills, and it’s now at an all-time high after the CCPA (California Consumer Privacy Act), which was passed in 2018. Since then we’ve seen multiple states propose similar legislation created to protect consumers. The bottom line that employers need to understand is that consumers are becoming more aware of their privacy rights and states are looking to address those concerns in the law.”

Chris pointed to three states which have currently passed comprehensive privacy laws: California, Colorado, and Virginia. From these new laws, two different trends have emerged:

• The California model (the CCPA) has been described as a model resembling the EU’s GDPR (General Data Protection Regulation), which has been mainly focused on HR data.
• The Colorado and Virginia models are more typical models of the state privacy laws we’re seeing develop.

Meanwhile, currently-proposed bills from other states, which are more comprehensive, focus on privacy rights outside of just HR data.

From a legislative activity standpoint, we’ve seen over 30 states introduce some sort of comprehensive privacy laws in 2021. Most of those laws failed, while others are still being considered as of early 2022 but are also likely to fail. However, since more than half the country has proposed some kind of privacy law, we see privacy as being a trending topic. We’ll probably see more states proposing their own laws in 2022.

Chris continued, “Moving on to another privacy trend in the laws that we’re seeing proposed, there are two distinct components, consumer rights and business obligations, built into these laws. When we talk about consumer rights, we’re talking about the right to access and the right to correction, i.e. to delete information. Currently we’re seeing restrictions on the use of private information, and that businesses are now required to provide notice requirements when consumers opt out of their personal information being used.”

Chris was quick to point out that, regarding opt-in age requirements and purpose limitations, the FCC is restraining activities which are generally exempted in these laws. Again, while there’s no comprehensive federal privacy law yet, there is bipartisan support for data privacy regulation. However, there exists wide disagreement around how to implement it all, which so far has prevented Congress from actually creating a federal law. We believe that as more states like California, Colorado, and Virginia pass comprehensive privacy laws, it’s likely that those state models will prompt a comprehensive federal law in the future.

What are the takeaways for HR managers concerning privacy laws? While you should continue to monitor your state’s privacy laws, you should also stay aware of any activities outside of the FCRA that may trigger these laws. For example let’s say your organization is undertaking a project that you believe is training-related but is actually ancillary. If it’s not covered on the FCRA, and it’s not actually background screening activity, you might want to have a look at those laws and see if that activity is now being affected by the law. As always, consult with counsel.

Covid-19 Testing and Vaccine Mandates

The last couple of years of the pandemic have ushered in a new era presenting many challenges for the world, the US, and the workplace, including new compliance challenges. Angela Preston outlined compliance strategies focusing on Covid-19 testing and vaccine mandates, stating, “By now we all know that the Biden administration has been very bullish on vaccine mandates, which will impact your onboarding process and your day-to-day operations for workplace safety. In fact, as of December 2021, the court order blocking the OSHA vaccine mandate for private employers with 100 or more employees has been overturned in federal court.”

Angela continued, “The first thing that HR teams must keep in mind is that it’s up to organizations themselves to figure out whether or not there is a mandate that applies to you, whether it be state or federal. In addition to the large employer mandate, the Biden administration also has mandates in place for federal government employees and the military.”

There is also a healthcare worker vaccine mandate that’s recently been blocked in federal court. But state or even local mandates may apply to your business: some states have their own Covid-19 mandates, so it’s important to speak with counsel about this issue. For example, New York State does have a healthcare worker vaccine mandate. One thing to keep in mind is that with the mandates come additional potential testing requirements and logging of vaccine information. These are all relevant whether you’re an employer who is subject to a mandate, or if you simply want to have a policy to support vaccination for safety purposes and protecting your workplace.

Angela also explained that as part of their compliance efforts, HR teams will also need to collect and document employee vaccination status. Additionally, federal law and EEO law does require reasonable accommodation for employees based on religious or disability reasons. These accommodations can be invoked by your employees.

All of this highlights the need for systems and methods for collecting vaccination information, and in the alternative, to offer and implement testing programs for those who can’t be vaccinated.

Angela continued, “OSHA has described what type of testing is acceptable for the large employer mandate. If you know that you have employees who need to enter your workplace who are unable or unwilling to be vaccinated, you need to make sure you understand what tests are going to be acceptable to administer, as well as the testing protocols and routines that are required by the particular mandate, whether it be OSHA or a state-specific mandate. Some of these state-specific laws may also require you to reimburse or cover the costs, while the federal large employee testing provisions do not require employers to cover the cost of testing.”

Angela’s takeaways include:

• Make sure to consult with your counsel on the applicability of vaccine mandates to your business and to your return-to-work policies.
• Be aware that the federal mandate’s need for reasonable accommodation and its documentation requirements are quite extensive.
• Consider state laws that may require compensation for time off, enough for actually obtaining the vaccine and/or for testing.
• Ensure that your testing protocols are in compliance with the mandates.
• Start planning now with your policies and procedures in order to get buttoned-up in this safety-critical area.

Marijuana Drug Laws: Defining Legalization and Decriminalization

Marijuana drug laws are another difficult compliance area which many employers (and employees) are uncertain about. Our panelists took some time to clear up some of the confusion surrounding compliance issues focusing on these laws.

Angela noted the importance of defining “decriminalization” and “legalization.” “Legalization” means that it’s legal to buy a substance and to use it. “Decriminalization” means that the penalties have changed from being a criminal penalty to just a fine or a civil offense.

We’re seeing a trend of marijuana legalization in 18 states and two territories including the District of Columbia. 27 states have also decriminalized small amounts of cannabis for recreational use. We also see a trend with different jurisdictions passing laws prohibiting employers from performing drug testing.

If you employ workers who are in safety-sensitive positions and if you have a drug screening program, you need to think about it first in terms of those safety-sensitive positions. For example, this means finding out whether or not your jurisdiction has decriminalized marijuana, or in fact has prohibited drug testing altogether.

Going into 2022 we’re also seeing a trend at the employment level to remove marijuana from a testing panel, unless it’s required. But for many employers, drug testing is still required.

Marijuana is a federally-controlled substance and should be thought about in that light. Bear in mind there may be different jurisdictions where different laws are going to apply depending on where you’re hiring, where your employees are, and where your workers are going to be.

The risk of not testing can potentially expose your business to negligent hiring or retention claims: for example if you are engaging with vulnerable populations and operating motor vehicles. You absolutely need to account beforehand for these and other factors.

Part of the problem with marijuana is that there is no legal standard for impairment. Without a pre-defined level of impairment, it can be challenging even at the workplace for testing to determine: is this person impaired or not impaired? This is difficult to measure for marijuana, unlike with alcohol, which has long-established legal levels of impairment.

Therefore, our drug-testing takeaway is that there are multiple jurisdictions for drug laws, so employers need to consider whether they want to have multiple policies by jurisdiction or whether they want to adopt a universal drug policy. You can also consider dropping pre-hire testing unless it’s needed under state or federal law. Also be aware that you still have a right to require drug tests for candidates and employees unless there is a specific prohibition in your jurisdiction. We work with clients to try to develop customized programs for their specific needs.

Q&A

Angela and Chris also touched on background screening trends relating to salary and credit history, remote work, the gig economy and social media. During our webinar Q&A they also fielded questions from the audience:

Q: Is it prohibited to test for marijuana across the entire state of New York, or just in New York City?

A: Marijuana restrictions have recently been extended to all of New York State. Consult with your counsel on prohibited activity.

Q: Are employers still required to do CRA adverse action in places that have banned the box and fair chance laws?

A: Yes, as a general answer. However, employers need to know if those fair chance laws have some kind of extra requirement that might be in addition to the FCRA or a little different. For example, Illinois was one of the examples we covered, but overall you have to comply to the FCRA and then layer in the state or local law.

Q: Can companies still perform drug testing in jurisdictions which have decriminalized marijuana?

A: Yes, but this really requires that you create a custom compliance program. Depending on where you’re hiring, you absolutely can still do drug testing and screening, but you may need to closely examine the drug laws in the jurisdiction where your employees are and where they’re going to be working.

Q: Do background check laws apply to gig and remote workers too?

A: There are some jurisdictions that carve out or have special laws that apply specifically to the gig sector and remote workers. For example, there are some laws applying to transportation network companies involving drivers and how far back you can look into someone’s criminal history, but generally the same laws that apply for background screening also apply to gig and remote work. The FCRA has a very broad definition of employment that typically will encompass gig workers and contract workers, even if they’re not considered a traditional W2-type employee. Existing consumer protections are extended to those different types of workers.

What’s the key takeaway for HR compliance teams for 2022? Again and again, our panelists cautioned HR teams to avoid having a “set it and forget it” mentality when it comes to compliance. Each state and jurisdiction may differ in its laws, so you should consult with your counsel while keeping current on existing and pending regulations as they evolve throughout the year. It’s the surest way to help promote trust and safety in your workplace throughout 2022.

Watch the full on-demand webinar to discover more insights about 2022 compliance challenges, and learn more about the latest compliance updates, compliance forms, and more from Sterling’s compliance team. Angela Preston will be hosting another compliance webinar on January 26 with Human Resource Executive. Click here for details and to register.

Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.