What a year 2020 has been! In addition to juggling many issues and projects in our professional and personal life, we had to add COVID-19 and an election season into the mix. As 2020 went by, most of us had to constantly adapt to keep our businesses running; our families safe; and our employees working. While undertaking all these issues, there were some background screening and drug testing observations that might have been overlooked and should be considered.
This is not going to be a COVID-19 rehash on how to run your background screening and drug testing programs during this pandemic. The only thing I would say is that the Fair Credit Reporting Act (FCRA) and governmental rules have not changed because of COVID-19 except for some I9 procedures. Therefore, the following are some observations that I believe are important which occurred in 2020 and will be prominent in the year to come.
Continuous monitoring of current employees seems to be gaining more interest. This is a good way of keeping up with potential employee criminal activity while in your employ. Keep In Mind: know what jurisdictions the continuous monitoring program covers; how often the information is returned (instant, daily, weekly, monthly); what extra work that might be placed on your HR folks on providing a current employee roster to the Consumer Reporting Agency; and are there any additional FCRA requirements that come into play. This is a trending interest in the Health Care industry.
Drug Laws. This past election added four states to legalize recreational marijuana: Montana, Arizona, New Jersey, and South Dakota. In all, 15 states and DC have passed recreational marijuana laws with 36 permitting medical usage. Oregon became the first to decriminalize possession of small amounts of harder drugs such as cocaine, heroin, and methamphetamines. There are still indications that the federal House of Representatives may push to decriminalize cannabis in the next few months. Along with legalization, we see many jurisdictions sealing or expunging non-violent marijuana offenses. It shouldn’t be surprising that a misdemeanor drug offense that did show up on an applicant a few months ago now will not show on a current background check. Expect these trends to continue.
Common names and name changes. An individual’s name along with date of birth, social security number, address, etc., is the foundation of all identifiers utilized in the background screening process. Lists of the most common names in the United States will change next year with the results of the 2020 Census. The current list of common names is ten years old which was derived from the last census, 2010. Some names will drop off the list and new ones will be added. This will emphasize the need to make sure background screening report information is obtained on the right individual. We have also seen an increase of individuals changing their names in the last few years which, we believe, will continue in the future – although the percentage of newly married women are keeping their last name is on the upswing. Common reasons for changing one’s name include divorce, husband taking wife’s name upon marriage, transgender, and same-sex partners sharing surname. In the future, these name changes can and will play a big part in making sure background information is linked to the correct individual.
Other areas in the industry where we have seen an increase of emphasis this year and in the future from government regulators are individual privacy; Ban The Box; additional jurisdictional requirements for compliance with providing adverse action notices; limitation on access and use of employment credit reports; steady increase in class action lawsuits as it relates to employment background screening; and more technology with the emphasis on compliance to streamline companies background screening programs.
As you can see even though our focus this year was directed to the pandemic and the election, industries including the background screening industry still evolved – although maybe at a slower pace than usual from within the industry and from governmental agencies.
Happy New Year to all! After all, 2021 can’t be any less challenging than 2020… or can it?
Norm Gagnon, Dr K(no)w
