Mar 13, 2023,08:00am EDT
The 2023 legislative season is in full swing with bills advancing candidates’ rights taking … [+]
As the 2023 legislative season matures, lawmakers are providing insight into their legislative agendas. While the bills introduced echo similar themes from years past, social causes advancing candidates’ rights are evolving to do more with more less – including embracing advances at the state and local level. As a result, multi-state employers must be prepared to navigate the patchwork of legislation impacting background screening practices across the country.
Part One of this series reviews the mechanics behind legislation likely to be passed. We also consider the decline of “ban-the-box” measures that once dominated the legislative landscape and the pivot towards clean slate legislation that has recently gained traction.
Most legislation impacting U.S. employers will continue to be driven by local and state measures rather than federal laws.
The outcome of the 2022 election as it relates to employers is a legislative stalemate as no one party controls the House and Senate. The balance of power currently places the House in the hands of the Republicans by a slim majority, whereas the Senate remains in the hands of the Democrats. As a result, at the federal level, it’s unlikely, absent bipartisan support, that there will be substantive legislation that impacts background screening.
From a historical legislative perspective, Democrats are more inclined to introduce legislation that addresses social causes impacting workers, such as fair chance hiring, pay equity, and cannabis reform, whereas Republicans focus on legislation affecting employers. Considering the composition of Congress, employers should not expect to see a federal ban-the-box law that applies to private employers, nor is a federal pay transparency law likely to transpire.
However, some legislative movement at the federal level in the cannabis arena is possible. While legislation that legalizes marijuana is unlikely in this Congress, measures that support the cannabis industry may materialize.
Thirty-eight states permit the medicinal use of cannabis, and twenty-two states, and the District of Columbia, have legalized marijuana for adult recreational use. This means that almost half of all Americans live in a state where marijuana is legal to consume despite federal prohibitions. A recent Gallup poll reports that 68 percent of Americans support cannabis legalization more than ever. Lawmakers in the U.S. are keen to keep their constituents happy as the majority favor increased protections for marijuana use. Governors of several states representing both parties are pushing Congress for federal banking reform to address cannabis commerce currently regulated at the state level. This is an example of federal legislation potentially supporting state legislative efforts. While similar federal banking measures didn’t cross the finish line during the last legislative session, if they were to progress in 2023, considerable expansion of the cannabis industry within the states would be possible as it would be markedly easier for retail cannabis outlets to operate.
With states impatient to move the legislative dial and tune into the constituents’ views, legislation tends to move more quickly at the state and local levels, especially in states where the legislative process is controlled by one party. Often referred to as a “trifecta,” there are 22 Republican and 17 Democratic trifectas where a single party holds the governorship and a majority in the House and Senate. Divided legislatures govern 11 states.
Often referred to as a “trifecta,” there are 22 Republican and 17 Democratic trifectas where a … [+]
Bills concerning clean slate initiatives, ban the box measures, cannabis reform, and pay equity and transparency are likely to pass in states with a Democratic trifecta. Simply put, it is generally easier to pass legislation at the state level, especially when both Houses are politically aligned and there is a politically aligned governor. Therefore, employers should be mindful of rubber-stamp legislation progressing through these states.
Clean slate laws usurp ban the box legislation.
Following the theme of doing more with less, instead of ban the box laws that restrict an employer’s inquiry into a candidate’s criminal history, lawmakers are focusing their legislative efforts on providing candidates convicted of certain offenses a clean slate towards employment. In many cases, candidates whose criminal history includes non-violent convictions who have not reoffended over a period of time may have their criminal records wiped clean, eliminating potential bias or negative stigma associated with the criminal history.
In 2022, only three measures advanced in the criminal history arena related to “ban-the-box” laws or “Fair Chance” hiring. Two ban-the-box laws were passed at the local level – in DeSoto, Texas, and Gainesville, Florida,, which were just introduced in December 2022. This is a far cry from years past, where a typical legislative season would see dozens of bills introduced, with many of them being successfully enacted. An outlier in 2022 was a fair chance hiring law introduced in Atlanta, Georgia, which does not restrict an employer’s inquiry into a candidate’s criminal history. However, it requires that an employer conduct an individualized assessment of a candidate’s criminal history as it relates to the job to which they applied.
Comparatively, clean slate laws providing automatic expungement of certain crimes were passed in California, Colorado, Connecticut, and Oklahoma in 2022. Currently, 60 bills across 19 states and Washington D.C. are under consideration by lawmakers in 2023. Additionally, twelve states have introduced ban the box legislation, with 25 bills being debated.
Notable clean slate legislation that has been introduced with a strong likelihood of passing would expand existing clean slate laws in California, Illinois, and New York. At the same time, new legislation under consideration in Minnesota would allow for automatic expungement for specific crimes for qualified individuals. Recently introduced ban the box measures that may gain traction include expansion of California’s existing law, broader scope of applicability in Illinois and Minnesota, and more comprehensive anti-discrimination measures in New Jersey.
Recent data from the U.S. Bureau of Labor Statistics says that of 11 million open job vacancies nationwide at the end of December 2022, there are only about 5.7 million people in the U.S. to fill them. Clean Slate laws aim to get criminal ex-offenders back to work and help supplement the labor pool. As lawmakers increasingly favor clean slate legislation, employers should expect fewer criminal records reported on background checks, which could help streamline hiring and allow employers time to assess candidates with more serious criminal convictions.