Background Checks

Last year was interesting for employers—and more than a little disconcerting. We watched an increasing number of cities, states and counties enact Ban-the-Box laws, even as hiring-related class-action suits continued to roll in, unabated. So, what will this year hold? We rounded up a list of top contenders based upon our own insights and legal commentary around the country.

  • Government oversight and enforcement regarding background check accuracy will continue to escalate. With not only the EEOC but also more than 100 states, counties and cities enacting guidance to protect candidates during hiring, this is undoubtedly the biggest issue for employers to watch in 2016.
  • Fair Credit Reporting Act (FCRA) lawsuits will become more prevalent. With so many targets and plenty of law firms willing to pursue potentially lucrative class-action complaints, we expect these lawsuits to become more common, as well.
  • Privacy concerns between the European Union (EU) and the United States will continue to make news. When the Court of Justice of the European Union (CJEU) invalidated the Safe Harbor framework in October, many European companies took steps to restrict data flow to the US. The EU and US are currently working on a replacement agreement, but there are no firm details at this time.
  • Social media background checks will receive more attention. Many employers have become wary of “social media screens” due to potential privacy issues. However, in 2015 the media alleged that several violent events might have been prevented with more stringent social media checks. The most widely reported of these was the domestic terrorist attack in San Bernardino, California by Tashfeen Malik and Syed Rizwan Farook. Some news media speculated that more intensive social media screening during Malik’s visa background check might have revealed a potential threat. For this and other reasons, the use of social media screens will be a hot topic.