Five Changes Impacting Background Checks and Employment Law in 2021
1. A new federal law – the Fair Chance Act
Beginning December 2021, a new federal law – the Fair Chance Act – will prohibit federal contractors nationwide from inquiring about a job applicant’s criminal history during the initial stages of the application process. The new restrictions will only apply to positions related to work under the federal contract that subjects the contractor to the Fair Chance Act. The Act was signed into law by President Trump in December of 2019 as part of the National Defense Authorization Act (NDAA).
2. Colorado’s new Salary History Inquiry Ban
As of January 1, 2021, Colorado employers are prohibited from:
- relying on an applicant’s wage rate history to determine a wage rate;
- discriminating or retaliating against an applicant for not disclosing their wage rate history;
- discharging, discriminating, or retaliating against an employee for (1) invoking the wage rate history ban on behalf of anyone; or (2) assisting in the enforcement of the wage rate history ban; and
- relying on an individual’s wage rate history to justify a disparity in current wage rates.
Unlike several other similar state laws, Colorado does not provide an exception to the restrictions when an applicant voluntarily discloses their wage rate history.
3. Georgia’s new law regarding sealed criminal records
Georgia’s SB 288, effective as of January 1, 2021, will allow rehabilitated individuals to petition the court to have certain misdemeanor convictions restricted and sealed four years after the completion of their sentence, provided they have no new convictions and no pending charges. The bill also provides significant liability protection for employers who engage in second-chance hiring.
4. Saint Louis’s first Ban-the-Box Ordinance
As of January 1, 2021, employers located within the City of St. Louis with ten or more employees are prohibited from asking about criminal history on applications and hiring forms. The ordinance also prohibits employers from basing hiring or promotion decisions on an applicant’s criminal history unless the employer can demonstrate its relevance to the employment-related decision. Employers may not attempt to circumvent these restrictions by seeking publicly available information about an individual’s criminal history.
5. Washington’s new law relating to Certificates of parental Improvement (and background checks)
Washington recently enacted HB 1645, making it unlawful, as of January 1, 2021, to deny employment to a childcare provider where a background check reveals that, although the individual has a finding of child abuse or neglect in their record, he or she has since obtained a certificate of parental improvement (as defined in the new law), permitting the individual to care for children.
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