U.S. Legislation That May Impact Background Screening in 2023: Part One
The 2023 legislation season is maturing, and lawmakers are providing insights into their agendas. Alonzo Martinez dives into the details behinds the legislation, as well as clean slate and ban-the-box laws employers should to be familiar with.
This article was originally published by Forbes on March 13, 2023.
As the 2023 legislative season matures, lawmakers are providing insight into their legislative agendas. While the bills introduced echo similar themes from years past, social causes advancing candidates’ rights are evolving to do more with less – including embracing advances at the state and local level. As a result, multi-state employers must be prepared to navigate the patchwork of legislation impacting background screening practices across the country.
Part One of this series reviews the mechanics behind legislation likely to be passed. We also consider the decline of “ban-the-box” measures that once dominated the legislative landscape and the pivot towards clean slate legislation that has recently gained traction.
Most legislation impacting U.S. employers will continue to be driven by local and state measures rather than federal laws.
The outcome of the 2022 election as it relates to employers is a legislative stalemate as no one party controls the House and Senate. The balance of power currently places the House in the hands of the Republicans by a slim majority, whereas the Senate remains in the hands of the Democrats. As a result, at the federal level, it’s unlikely, absent bipartisan support, that there will be substantive legislation that impacts background screening.
From a historical legislative perspective, Democrats are more inclined to introduce legislation that addresses social causes impacting workers, such as fair chance hiring, pay equity, and cannabis reform, whereas Republicans focus on legislation affecting employers. Considering the composition of Congress, employers should not expect to see a federal ban-the-box law that applies to private employers, nor is a federal pay transparency law likely to transpire.
However, some legislative movement at the federal level in the cannabis arena is possible. While legislation that legalizes marijuana is unlikely in this Congress, measures that support the cannabis industry may materialize.
Thirty-eight states permit the medicinal use of cannabis, and twenty-two states, and the District of Columbia, have legalized marijuana for adult recreational use. This means that almost half of all Americans live in a state where marijuana is legal to consume despite federal prohibitions. A recent Gallup poll reports that 68 percent of Americans support cannabis legalization more than ever. Lawmakers in the U.S. are keen to keep their constituents happy as the majority favor increased protections for marijuana use. Governors of several states representing both parties are pushing Congress for federal banking reform to address cannabis commerce currently regulated at the state level. This is an example of federal legislation potentially supporting state legislative efforts. While similar federal banking measures didn’t cross the finish line during the last legislative session, if they were to progress in 2023, considerable expansion of the cannabis industry within the states would be possible as it would be markedly easier for retail cannabis outlets to operate.
With states impatient to move the legislative dial and tune into the constituents’ views, legislation tends to move more quickly at the state and local levels, especially in states where the legislative process is controlled by one party. Often referred to as a “trifecta,” there are 22 Republican and 17 Democratic trifectas where a single party holds the governorship and a majority in the House and Senate. Divided legislatures govern 11 states.
Bills concerning clean slate initiatives, ban-the-box measures, cannabis reform, and pay equity and transparency are likely to pass in states with a Democratic trifecta. Simply put, it is generally easier to pass legislation at the state level, especially when both Houses are politically aligned and there is a politically aligned governor. Therefore, employers should be mindful of rubber-stamp legislation progressing through these states.
Clean slate laws usurp ban-the-box legislation.
Following the theme of doing more with less, instead of ban the box laws that restrict an employer’s inquiry into a candidate’s criminal history, lawmakers are focusing their legislative efforts on providing candidates convicted of certain offenses a clean slate towards employment. In many cases, candidates whose criminal history includes non-violent convictions who have not reoffended over a period of time may have their criminal records wiped clean, eliminating potential bias or negative stigma associated with the criminal history.
In 2022, only three measures advanced in the criminal history arena related to “ban-the-box” laws or “Fair Chance” hiring. Two ban-the-box laws were passed at the local level – in DeSoto, Texas, and Gainesville, Florida, which were just introduced in December 2022. This is a far cry from years past, where a typical legislative season would see dozens of bills introduced, with many of them being successfully enacted. An outlier in 2022 was a fair chance hiring law introduced in Atlanta, Georgia, which does not restrict an employer’s inquiry into a candidate’s criminal history. However, it requires that an employer conduct an individualized assessment of a candidate’s criminal history as it relates to the job to which they applied.
Comparatively, clean slate laws providing automatic expungement of certain crimes were passed in California, Colorado, and Oklahoma in 2022. Currently, 60 bills across 19 states and Washington D.C. are under consideration by lawmakers in 2023. Additionally, twelve states have introduced ban the box legislation, with 25 bills being debated.
Notable clean slate legislation that has been introduced with a strong likelihood of passing would expand existing clean slate laws in California, Illinois, and New York. At the same time, new legislation under consideration in Minnesota would allow for automatic expungement for specific crimes for qualified individuals. Recently introduced ban the box measures that may gain traction include expansion of California’s existing law, broader scope of applicability in Illinois and Minnesota, and more comprehensive anti-discrimination measures in New Jersey.
Recent data from the U.S. Bureau of Labor Statistics says that of 11 million open job vacancies nationwide at the end of December 2022, there are only about 5.7 million people in the U.S. to fill them. Clean Slate laws aim to get criminal ex-offenders back to work and help supplement the labor pool. As lawmakers increasingly favor clean slate legislation, employers should expect fewer criminal records reported on background checks, which could help streamline hiring and allow employers time to assess candidates with more serious criminal convictions.
You can read about these updates, and the existing ban-the-box and Fair Chance hiring laws in HireRight’s white paper, “Ban the Box” and Fair Chance Hiring Laws, which was last updated in January 2023.
In part two of this series, we look at how the landscape of cannabis legislation in the U.S. may shift in 2023 and whether a rise in pay transparency laws across the U.S. might be on the cards this year.
Release Date: March 15, 2023
Alonzo Martinez is Associate General Counsel at HireRight. Mr. Martinez is responsible for monitoring and advising on key legislative and regulatory developments globally affecting HireRight’s service delivery. His work is focused on ensuring HireRight’s performance as a consumer reporting agency and data processor complies with relevant legal, regulatory, and data furnisher requirements. Mr. Martinez obtained his Juris Doctorate from the University of Colorado, and is licensed by the Supreme Court of the State of Colorado. He is a member of the Colorado Bar Association Employment Law Division, the Association of Corporate Counsel, and the Professional Background Screening Association.