1. Legal Marijuana is a Brewing Mess for Employers

As of the midterm elections in 2018, 22 states allow medical marijuana and 10 let adults smoke purely for recreation. While a lot of folks are cheering the decisions, the reality for employers is very messy.

Here’s why legal marijuana is messy for employers:

1. State laws and federal laws are clashing as more states legalize the Schedule II drug.
2. Employers have lost cases in Connecticut, Massachusetts and Rhode Island. Setting precedent that firing someone for medical marijuana use violates the Americans with Disabilities Act (ADA).
3. In states that allow recreational use, smoking pot is no different than drinking alcohol on an employee’s own time – but it’s impossible to prove if someone is under the influence at work.
4. Marijuana is stronger and less predictable than it was in the past. THC levels are much higher, and people react to THC differently. A Colorado study found that marijuana-related hospitalization rates have more than doubled since the drug became legal there.

How will this affect you in 2019?

Employers are still urged to have a clear and well-thought-out Drug Free Workplace Policy. As long as federal law says marijuana is illegal, you have the right to demand your employees pass a drug test and not be impaired while on the job.

Unfortunately, there’s still no test that can tell if someone is impaired. You’ll only be able to confirm that they’ve used sometime within the last few days, weeks or months. That means it’ll be very difficult for employers to prove someone is high during work hours.

This is an area that we expect to get a lot of attention from the plaintiff’s bar in 2019. Especially now that there are challenges under the ADA. It’s a good idea to have an attorney who specializes in drug-free workplaces help draft your policy. As the issues become more complex, a strong, properly worded policy is your best friend.

2. More Millennials in the Workplace

While there aren’t precise dates for when they begin and end, those born in the early 1980s until the mid 90s are labeled as “millenials”. That means that older millennials are graduating college and entering the workforce. And in 2019 they’ll join more than 50-million who are already on the job. There isn’t an employer out there who doesn’t understand that this generation has dramatically changed the way we all work.

Here are some key ways millennials have changed the workplace:

• They want flexibility, not a rigid schedule.
• They need their work to be meaningful.
• They’re more likely to job-hop as they look for better opportunities.
• They want to do everything on their mobile device.
• They’re more likely to apply for jobs with companies that utilize social media for recruiting.

How will this affect you in 2019?

If you are a large employer or hire remotely, technology is your friend. Millennials want everything on mobile, and they want everything to be integrated. First, make sure you have a seamless experience from beginning to end. That means using your ATS/HRIS to make sure all third-party vendors, like your background screener, are integrated so everything from the application, the interview and the onboarding process can all be managed from their phones.

One of the more popular features you may want to consider providing is an SMS-based candidate portal. Our experience shows that Millennials are much more likely to respond and provide information when prompted via text rather than via email.

It might also be a good idea to consider how you will use social media reviews in your background screening — if you use them at all. While this generation literally puts their entire life out there for the world to see, there are some very big pit-falls when it comes to using social media to learn about your applicants during the hiring phase. Be sure to check with your screening partner to understand what is best for you.

3. Fair Credit Reporting Act

As a background screening company, the FCRA is our compass. Everything we do is regulated by this legislation. 2018 was another busy year for plaintiff’s attorneys trying to use the FCRA to land huge settlements based on technical violations of the law.

Here’s a quick summary of the FCRA in 2018:

• The majority of recent suits focused on employers’ failure to provide applicants with a stand-alone disclosure to get permission to run a background check. Many more alleged violations of the pre-adverse action notice requirements.
• While there was still a long line at courthouses hoping to get multi-million-dollar settlements, there was definitely a shift in the rulings. More judges turned to the 2016 Spokeo v. Robins decision that requires plaintiffs to prove “concrete injury” in class action suits. We saw a growing number of cases that ended in the employer’s favor because the court found the plaintiff lacked standing to sue.

A Supreme Court decision might make it harder to get these class actions to stick:

• Justices ruled 5 to 4 that companies may use arbitration clauses in employment contracts in an effort to head off class action lawsuits.
• The majority opinion pointed to the fact that Congress created the Federal Arbitration Act because arbitration benefits both sides. It’s fast, simple and inexpensive.
• The 5 conservative judges felt banning arbitration in favor of forming class actions would nullify the Federal Arbitration Act.
• The minority strongly disagreed saying the decision is too pro-business and is trying to stamp out class actions.

The Consumer Financial Protection Bureau (CFPB), the agency overseeing the FCRA, also made an important change this year:

• The CFPB announced that a new page needed to be added to the Summary of Rights that’s presented to applicants and employees in regard to background checks.
• This form must be presented before any adverse action is taken.
• The old form outlined the applicants’ right to see the background report and to dispute any erroneous information.
• The new form must include an additional page telling them how to institute a free credit report freeze.
• All employers should be using the new version of the form.

How will this affect you in 2019?

When it comes to the FCRA and the associated risks, the solution is compliance.

The Spokeo-based decisions are a positive development for employers since they seem to be reducing or eliminating the large awards. But, it’s still imperative that you make sure your disclosures and authorizations are compliant with the FCRA, because we don’t expect the lawsuits to die down any time soon. High legal fees should convince you to make sure your process and your forms are compliant, so you don’t have to go down that road at all.

You might also want to consider adding arbitration clauses to your employment contracts. Again, this is a discussion to have with your legal counsel.

4. Ban the Box and Salary History Bans

Ban the Box laws stop employers from asking applicants about any criminal history until after they get to know them at bit. Many of the laws say you can’t even ask these questions until you make a conditional job offer. The goal is for the employer to get to know the applicant and their qualifications without their opinion being clouded by past criminal convictions.

In 2018 we saw new ban the box laws as well as the expansion of existing laws.

Here’s where Ban the Box laws stand now:

• More than 150 cities and counties and 33 states have laws legislating when an employer can ask about criminal history.
• 31 states have adopted statewide laws or policies that apply to public employers.
• 11 states have laws that include private employers.
• Laws in 31 states and the District of Columbia also apply to the hiring policies for government contractors.
• Many of the current laws also require employers do an individual assessment for anyone with a criminal history. This means they need to review the severity of the offense, think about the amount of time that has passed since it happened and decide if the crime would have any effect on the job they’re trying to get today.
• The federal government has its own guidelines that prohibit agencies from doing criminal background checks until an applicant has a conditional job offer, with some exceptions.

And Here’s where Salary History Bans stand:

• 11 states have instituted statewide salary history bans.
• 9 cities, states and other jurisdictions have passed local salary history bans.
• The laws are aimed at ending pay discrimination.
• Employers can’t use any previous salary information to set compensation – even if the applicant discloses it themselves.

How will this affect you in 2019?

Employers have to adjust to the new Salary History Bans. We expect more to be passed in the coming year. As far as the Ban the Box Laws, we expect many to be amended to expand their reach. Several states did that in 2018 as they work to expand what employers have to comply. Most of the laws begin with government employees, then they expand to include government contractors. Eventually, we expect the laws to apply to all hires.

5. Changes in Talent Acquisition

In 2018, we saw a shift in power when hiring from employer to job seeker. After years of having a surplus of applicants, employers are finding it more difficult to get qualified candidates. When good candidates apply they aren’t desperate to sign. Instead, with statistical full-employment, applicants often have several jobs from which to choose. Competition for the best hire has gone through the roof.

Increased competition when hiring means:

• Employers need to stand out and look for new ways to attract talent.
• Applicants are demanding convenience. They want to do everything from the job search to the application process electronically.
• Even email isn’t good enough anymore. The pressure is on to use text messages instead.
• Employers need to find ways to remove barriers to create efficiencies by implementing things like ATS integrations, Candidate Portals for background screening and mobile apps.

How will this affect you in 2019?

Employers are going to have to be more creative with talent acquisition in the coming year. That means finding new avenues for finding talent and being more proactive instead of waiting for a position to open up. Social media is expected to play an even larger role in the recruiting process, whether it be Facebook, Twitter and LinkedIn or message boards, blogs and forums.

Employers also need to focus energy on the candidate experience. Candidates want to feel good about the company they’re planning to work for, and if they have a good experience they will likely refer others to you.

Automating the whole process – from recruitment, to application, to pre-employment screening, all the way to the offer and onboarding – should be streamlined, automated and simplified. If not, you risk losing the best candidates to those who are on the cutting edge.