Running background checks has never been more straightforward for senior living and care employers, where someone’s life is always on the line.
This year is no exception. Employers nationwide continue to face an ever-changing landscape of laws and regulations that require both vigilance and foresight to navigate with confidence.
Proceeding without attentiveness and care is likely to result in complications for even the most compliant of yesteryear’s policies; it is now, as always, in every employer’s best interest to remain thoroughly informed about the latest developments in background check legislation.
Alhouhgh monitoring such developments is an ongoing task, the five trends listed below are indications of where employers ought to be looking as they approach the threshold of 2024. These areas show signs of significant change in the coming months and are likely to have noteworthy impacts on the background screening process.
Keeping a close eye on these trends will not only safeguard employers from being blindsided; it will provide them with direction as they plan and adapt their background check policies for the year to come.
1. Regulations on considering marijuana use
Unsurprisingly, increasing regulations on marijuana screening is a strong trend in 2024. As more and more states legalize recreational use — Minnesota and Ohio being among the most recent — regulations on testing for, inquiring about, and considering marijuana usage for employment will no doubt follow suit.
States where such changes have already taken place are also likely to implement new, more progressive regulations. Both California and Washington saw new laws take effect Jan. 1 restricting employers from considering pre-employment records of usage — including criminal records in California — as well as any off-duty use. Others may very well follow in their footsteps.
2. An updated FCRA
The federal government, via the Consumer Financial Protection Bureau, is in an ongoing process of updating the Fair Credit Reporting Act. Among the more recent changes was a 2023 amendment to the final rule of the summary of rights.
Although these alterations generally were nonsubstantive, ranging from terminology changes to updated contact information, the March 20 compliance date means that employers must soon adhere to and — more significantly — provide certain candidates with the revised version. Being mindful of this change, and those that follow it, is an essential measure for senior living and care employers who wish to avoid any risk of litigation.
3. New privacy laws taking effect
The varied restrictions on marijuana screening discussed in trend No. 1 are but a single example of the highly disparate laws that govern background checks across state lines, with privacy regulations serving as another notable instance. Since no federal privacy act exists, legislation on the matter varies widely from state to state.
2024 will see that particular problem become even more complex, as the states of Washington, Texas, Oregon, Florida and Montana have new privacy laws going into effect that will limit the use of human resource data. As the year progresses, therefore, many long-term care employers may need to adapt and revise how such information is used.
4. Courts producing disparate interpretations
Court decisions create precedent, naturally, and therefore are worth the attention of any employer. This is especially true in light of increasingly disparate interpretations by local and federal courts of existing laws that govern how background checks may be carried out.
One significant instance is the FCRA legislation, which requires authorization from an employee or candidate before employers can take certain actions within the screening process. Court decisions on this issue have been subject to change over time and place, leaving employers in uncertain positions about exactly what permissions they need or need not be granted. In that case and others, senior living and care employers are advised to heed the latest local and federal verdicts.
5. AI use being limited
As the use of artificial intelligence for efficient hiring becomes more commonplace, state legislators are introducing regulations to protect applicants and employees from discriminatory software. Those laws limit the use of “decision-making” AI in particular by providing guidelines for what AIs can consider when furthering or denying an application.
Certain states, such as New York, already have put regulations in place that require any such decision-making tools used in human resources to undergo a bias audit. As AI remains a relatively new territory, long-term care employers will do well to be especially attentive to legal developments in this area.
Conclusion
2024 is bound to see some substantial changes in the legal scene for senior living and care providers across the country. What that scene will look like a year from now can only be speculated, but the five trends discussed above offer a starting point. With a finger on the pulse of those indicators, long-term care employers will be able to follow the developments of the coming year as they unfurl. Those who do so, and who adapt along the way, will screen and hire with full confidence that the law, in all its complexity and caprice, is on their side.
Jeff Ernste is chief sales and marketing officer with Minneapolis-based Orange Tree Employment Screening. For more than 30 years, Orange Tree has provided technology-enabled background screening, drug testing and occupational health services for clients nationwide.
The opinions expressed in each McKnight’s Senior Living marketplace column are those of the author and are not necessarily those of McKnight’s Senior Living.
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