What are the latest trends and topics with regard to employee background checks? According to an article in HR Daily Advisor, “Top Background Screening Trends in 2020,” there are six hot topics.

1) Social Media Background Screening

2) Continuous Background Checks

3) Screening Gig Workers

4) Salary History Bans

5) Opposing Perspectives on Criminal Background Checks

Social Media Background Screening is a relatively new area in the HR industry. And there are definite legal Dos and DON’Ts attached to it. In Massachusetts, it is perfectly legal for an employer to view PUBLIC comments posted on social media by a prospective employee.

But it is not legal for an employer to request PERSONAL social media account information, like username and password, or to require employees to accept a Facebook “friend request” or a LinkedIn invitation from their employers as a condition of continued employment. This and more is stated in a recently passed Massachusetts Senate bill (“An Act Relative to Social Media Privacy Protection,” No. 2063). The Act also prohibits employers from requiring, requesting, or causing an employee or job applicant to reproduce content (e.g., photographs or videos) contained within a personal social media account that is not publicly available. 20 other states have similar laws.

Continuous Background Checks are a new trend gaining popularity in the HR industry. While over 70% of employers screen new employees before hiring, for many this is the last check that is made. While education credentials and employment information do not change, an employee’s criminal records, driving records, and credit reports can.

With violence, sexual harassment, and theft ever increasing in the workplace, it stands to reason that background checks after hire are a good idea. According to HR Technologist, Lyft and Uber recently went public with plans to conduct continuous background screening for their gig workers.

But there is compliance. Under the Fair Credit Reporting Act (FCRA), all background checks including continuous screening must be performed with employee consent unless there is a specific investigation for suspicion or misconduct. Most authorization forms require a one-time consent, but an employee can withdraw their consent at any time.

Screening Gig Workers—more than 57 million Americans are now part of the gig economy  and according to an Infosecurity Magazine article,“ In the Gig Economy, Background Checks are a Thing of the Past,” many companies are not doing their due diligence when it comes to screening these employees. According to the magazine, a steady stream of horror stories is the result. Contractors, medical practitioners, lawyers, caregivers, and others aren’t being properly vetted, certified, or licensed to do their jobs but are doing them nonetheless—with sometimes tragic results.

David Thomas, author of the article, states that this lack of screening is costing global brands $2.5 trillion per year, with $756 billion lost by U.S. companies, alone.

Salary History Bans—Many states, including Massachusetts, have enacted Salary History Bans that prevent employers from requesting salary history information. 26 states, plus District of Columbia and Puerto Rico have this ban.

Massachusetts law states that employers cannot request salary history information. They can, however, confirm prior history if volunteered by the applicant or if an offer has been extended. If known, previous pay cannot be a defense to a pay discrimination claim.

Opposing Perspectives on Criminal Background Checks—One may think that an employer can have a blanket policy not to hire convicted felons. But this is not the case. State and federal laws demand a non-discriminatory approach to hiring felons.

The Equal Employment Opportunity Commission has long held that employers cannot refuse to hire someone simply because he or she had a criminal record. Employers who refuse to hire anyone who has a criminal record can and have been found to violate federal law due to disparate impact.

Title VII of the Civil Rights Act of 1964, states that there are two general ways in which a Title VII violation may arise when refusing to hire individuals with a felony: disparate treatment or disparate impact. The Civil Rights Act is enforced by The Equal Employment Opportunity Commission.

Disparate treatment occurs when an employer treats two similarly-situated individuals in a different manner with the intent to discriminate. For example, an employer may choose to hire Caucasian individuals who have a felony conviction and not hire African-Americans with a similar felony conviction.

Disparate impact does not require the employer to have a discriminatory intent. Instead, it focuses on whether an otherwise neutral employment policy has the ultimate effect of disproportionately affecting one group over other groups. This practice is only illegal if the employment practice that results in this effect is not related to the position and is not consistent with business necessity. For example, an employer may have a blanket policy in place in which it refuses to hire any applicants who have any type of felony conviction. Because the conviction rates for certain ethnic groups are higher than for other groups, having such a policy in place may very likely wind up excluding more individuals in the ethnic groups that have higher conviction rates than in other groups.

Of course, any discrimination must be proven and, as with all background checks, a prospective employee must consent to the criminal background check in writing.

(Source: HG.org Legal Resources articles “Employment Background Checks without Employee’s Permission” and “Can an Employer Refuse to Hire Me for Having a Felony?”)

Why Choose The Hire Authority for Employee Background Screening?
The Hire Authority is on top of these latest trends in employee background checks and is well versed in the latest state and federal laws, regulations, and compliance. These can be complex. It is important to use a professional, experienced, and expert team like ours so that you can stay within the law while still doing a thorough employee background check.

The Hire Authority is thorough in our screening and makes sure to keep up to date with all recent legislation and regulation so that our clients are compliant with the EEOC, FTC, and FCRA.

We’d be happy to talk to you about screening your employees. Call us at

(508) 230-5901 or visit our website www.hireauth.com with any questions you may have. Be safe, not sorry.

The foregoing should not be construed as legal advice. Employers should always consult their own legal counsel for advice on labor and employment matters.