Background Screening Likely to Get Harder Before it Gets Easier

Authored By W.Barry Nixon, SHRM- CMP

The easiness of performing a background check is a thing of the past. Although most employers have accepted background screening as a risk mitigation tool, businesses are seriously underutilizing the process for the evolving legal landscape. With changes in laws around marijuana, the Fair Credit Reporting Agency, Ban the Box and Credit Checks, the background screening process has changed tremendously.

Changing Legal Landscape

Even though 19 states and the District of Columbia have enacted laws regarding the legalization of marijuana, employers still have rights pertaining to drug testing and employment denial based on test results. This, however, is a quickly changing hot topic.

Fair Credit Reporting Agency Lawsuits

Perhaps another touchy subject for private investigators who perform background checks is the rise in lawsuits filed by the legal community in an attempt to make money off of failure to follow FCRA prescribed procedures. Examples include the inclusion of a waiver of liability in consent and disclosure forms; time frames surrounding submission of a pre-adverse action notification form; and information included in online authorization forms.

Ban the Box

With 56 cities and counties adopting ban-the-box laws in some form or fashion, the policy now is including private employers, government jobs and contractors in several states.

Use of Credit Checks

Ten states now limit an employers’ use of credit information, while 47 bills in 26 states and the District of Columbia were introduced in the 2013 legislative session regarding its use in employment decisions. This trend is on the fast track to eliminate credit report use altogether.

Underutilization of Background Checks is Increasing Risk

Lack of Screening Contingent Personnel Continues to Create Unnecessary Risk

It is important for employers to perform the same type of screening on all employees, regardless of their status as contingent personnel. With the use of contingent employees – janitors, vendors, maintenance staff — on the rise due to the trend in flexible workforce, companies should be aware of the risk associated with access to company information.

Despite Increasing International Mobility Screening of International Candidates lags behind

It has been determined that education and employment fraud for international applicants has been as high as 25% and with about 13% of the U.S. population consisting of immigrants, it is important to properly screen those who have lived, worked or were educated outside of the country. The use of infinity screening can help lower a company’s risk by allowing them to be well-informed about their employments throughout their course of employment.

Accreditation May Lead to the Promise Land

Only 2% of all background screening firms have been accredited by the National Association for Professional Background Screeners, making this a competitive field. Dealing with a reputable firm ensures that the background screening process is well understood and complies with all screening laws as set by the FCRA, EEOC and other federal and state agencies.

With these topics and others, the background screening industry should be prepared for significant changes around the bend. It will serve employers well to become knowledgeable about the screening performed on each of their employees.

Post By Barry Nixon (70 Posts)

W. Barry NIxon, SHRM-CMP is the founder of, the publisher of The Background Buzz, The Global Background Screener, The Annual Background Screening Industry Resource Guide and In Search of Excellence in Background Screening: Insights from Accredited Background Screening Firms. He is co-author of Background Investigations: Managing Hiring Risk from an HR and Security Perspective, a recognized background screening expert and serves as an International Ambassador for the National Association for Professional Background Screeners.