Top 10 Background Screening Predictions for 2024

As in most years, navigating the intricate landscape of background checks in 2024 requires diligent attention to evolving laws and trends throughout the country. This year, we use trends to predict legislative and regulatory activities that have potential to impact employers, especially related to their screening programs. 

And, as always, FCRA compliance, including the disclosure and authorization requirements, as well as pre-adverse and adverse requirements warrant attention. Proactive monitoring not only helps to prevent complications due to outdated background check policies but also empowers employers to strategically plan and adapt these policies for the challenges and opportunities that lie ahead in the coming year.

Ready to discuss your 2024 background screening needs? Reach out and speak with our team.

10. Remote Work Means More Continuous Monitoring

Both access to and satisfaction with work-from-home benefits fell in 2023 for the largest companies while continuing to rise for small- to medium-sized businesses. Remote jobs have become much scarcer, but they have hardly disappeared. 

A remote workforce means that employers may not become aware of employee issues that they may need to help them ensure a safe work environment and that their workers do not present an undue risk to the public.  

Employers are recognizing the significance of ongoing employee monitoring, extending beyond the initial hiring process. Employers may have a heightened need to monitor employee behavior, especially when employers don’t often physically see them. Continuous monitoring comes with continuous compliance, which hinges on securing an employee’s consent for ongoing background screenings. 

Policies should transparently outline when and why screenings will occur, applying uniformly to all employees. In 2024, employers will continue to recognize that continuous monitoring helps to ensure trustworthy employees, fostering increased productivity, workplace safety, and reduced risks.

9. Privacy Laws Impact Employment Practices

Data privacy has been a top priority for state lawmakers, and it will continue in 2024. With no comprehensive federal privacy law, states are doing their own legislating and regulating regarding privacy matters. 

While these laws generally carve our information that is covered by the federal Fair Credit Reporting Act, they generally do cover employer collection of consumer information for other purposes, and each have their own nuances and requirements. In general, they require businesses to take reasonable steps to protect consumer data privacy, confidentiality, and integrity.  

But the details matter and employers should be analyzing their state specific obligations and limitations, and especially paying attention to where information is being collected across states have different legislative and regulatory schemes.

Further, the Consumer Financial Protection Bureau (CFPB) is increasing its focus on potential misuse and abuse of personal financial data. 

In 2022 it issued its “Advisory to Protect Privacy when Companies Compile Personal Data” with it described as a legal interpretation of the federal Fair Credit Reporting Act, reaffirming the requirement for companies to ensure they have a permissible purpose to collect information about consumers under that statute.  

In April of 2023 they also published a policy statement explaining the legal prohibition on abusive conduct in consumer financial markets.  

In the absence of federal privacy legislation, it seems likely we will continue to see state legislation and regulatory activity as well as federal regulatory activity to fill that void.

8. Employers Navigate the Era of Pay Transparency

While salary history bans have been around for some time, new laws requiring employers to disclose salary ranges are picking up steam. Pay transparency legislation requires employers to disclose salary information to job candidates and current employees, making workplaces more transparent and equitable. Pay Transparency laws have continued to affect whether employers can use an applicant’s pay for prior work to determine their current salary. 

In 2023, Washington and New York employers were directly impacted with new pay transparency laws. Hawaii’s law recently became effective on January 1, 2024, where employers with a minimum of 50 employees must provide job listings with an hourly rate or salary range that reasonably reflects the anticipated compensation, while Illinois’s law becomes effective on January 1, 2025, where employers with 15 or more employees must include salary ranges and a description of benefits in all job postings. 

But these types of laws are not limited to states. As of March 1, 2024, Columbus, Ohio employers may not inquire about an applicant’s salary history. 

Pay Transparency laws have continued to affect whether employers can use an applicant’s pay for prior work to determine their current salary. In addition, people in HR roles need to be aware of pay transparency legislation and how it impacts your job postings.

7. The Impact of Clean Slate Laws Grows for Employers

We are seeing an increasing trend of states passing Clean Slave legislation. Clean Slate legislations generally creates a path to erase or automate sealing/expunction/clearance of criminal records. 

And 2023 was no exception. Arizona’s and Connecticut’s laws became effective on January 1, 2023, while Michigan’s law became effective on April 11, 2023, and Alaska’s law, which removed marijuana possession cases from the state’s online database of cases, on May 1, 2023.

We are generally seeing a two-fold impact on employers: 

1. Records that have been expunged or sealed are generally no longer available to employers to consider as part of their background screening program. 
2. Legislation tends to impact over-worked and under-funded court staff, causing delays in completing criminal records checks.

In 2024, more employers are expected to include Social Media Checks, Employment Verifications, Professional References and Monitoring to fill in gaps.  

6. Delays and Access Restrictions Increase Throughout Court Systems

Clean Slate initiatives, as well as court rules and state legislative activity, have made some courts records harder to access.  

In Michigan and California, efforts to remove personal identifiers from public terminals and from court records themselves have led to delays and issues with false positives as well as false negatives.  

In 2023, we also experienced the results of Kansas court having been the target of an information security incident, which resulted in delays and inaccessible records.  

In North Carolina we are seeing rolling outages as courts are upgrading their entire systems.

In Georgia we are seeing court rules related to special form requirements and limitations on searching AKAs name.

Combined, these identifier and technology issues are making it extremely difficult for background screening companies to quickly and efficiently provide complete, accurate, and thorough reports. These trends are expected to continue in 2024,

We hope that measures to protect consumers and applicants will be balanced with the legitimate need of employers and landlords to protect employees, tenants, and the public.

5. The Big Stay

HR experts describe this period coming out "The Great Resignation" as “The Big Stay”, and we think we’ll see more of it in 2024.

What do we mean by “The Big Stay”? Research suggests that workers are hunkering down and more likely to remain in their current jobs for longer.

This trend contrasts with what was deemed The Great Resignation, where researchers saw a record number of workers—4 million each month—quitting their jobs in 2021 for better pay and benefits, work flexibility, an enhanced work-life balance and career advancement. 

4. HR Technology Velocity Speeds Up

We think the global market for Applicant Technology Systems (ATS) will continue to grow and evolve in 2024. In 2023, we at Orange Tree saw significant movement in our client partners electing to move to new ATS providers and more quickly.

We think we will continue to see this shift even for smaller clients as there may be fewer barriers to entry and for mid-sized and larger employers where there now seems to be less resistance to change.

3. Cannabis Complexities Impact Employers

With each passing year, more and more states have legalized marijuana or further clarified the provisions of their previous marijuana laws. In 2023, recreational marijuana laws went into effect in Delaware, the District of Columbia, Maryland, Minnesota, and Ohio, while Kentucky passed a medical marijuana (edible and topical forms) law to become effective on July 1, 2025. Marijuana laws are not new to this country. 

However, more states are recently taking an additional stance on them. To varying degrees, these laws are now specifying how marijuana legalization impacts employers, which is expected to continue. 

For example, Maryland’s new law specifically allows for employers to continue to test and discipline employees for marijuana use. Yet, the District of Columbia and Minnesota both provide protection for employees’ off-duty use of marijuana. New York City, Philadelphia, and Nevada now prohibit pre-employment marijuana testing, with some exceptions. 

California and Washington have taken a step further in limiting which metabolites of marijuana may be considered in the employment context. These laws will make it increasingly difficult for employers well into 2024. 

2. Federal Agencies Increase Scrutiny of AI’s Role in Background Checks and Hiring

Federal agencies have increased their attention on AI in hiring and background checks over the past several years. 

The EEOC launched initiatives and issued a technical assistance (TA) document to ensure that the use of software and other technologies in hiring and various employment decisions (“selection procedures”) complies with federal civil rights laws and does not impede ADA requirements. 

The White House also released guidance in the Blueprint for an AI Bill of Rights regarding the use of AI in the hiring process and in other areas. In 2023, the EEOC began enforcing their position more stringently by entering a $365,000 Joint Settlement Agreement with a tutoring company based on claims that the company used hiring software that automatically rejected applicants based on their age.

Today, while AI tools are being used by employers with more frequency to streamline processes and optimize employee performance, the confusion surrounding their use in various aspects of employment is also drastically increasing. We’ll see legislation at the state and local level in 2024 incorporating that EEOC’s technical assistance guidance.

1. Compliance Becomes Even More Challenging in Patchwork Landscape

The patchwork of laws that impact background screening across the country has increased exponentially. In the past, this patchwork has largely been made up of criminal justice reform measures, the legalization of marijuana, the availability of personal identifying information, and the determination of former compensation—all with their own requirements, specifications, and applicability.  

The trends in 2023 that we expect to see continue in 2024 are expansions of existing obligations. Where once we saw states enacting “ban the box” legislation we now see states layering on and incorporating something more – for instance EEOC-like individualized assessment guidance, or state specific adverse action notification language or forms.  

Where once states enacted salary history legislation, we now see pay transparency legislation.  Where once states were creating medical or recreational marijuana legislation, we now see states legislating recreational marijuana, creating marketplaces, automatically expunging and sealing marijuana convictions and even legislating which metabolites may be tested for employment purposes.  

2024 Is Shaping Up to Be Another Year of Change

These predictions emphasize the importance for HR and talent acquisition professionals to stay informed and adapt to evolving laws, regulations, and technological advancements in background screening and drug testing. Anticipating even further significant legal changes in 2024, employers must remain vigilant. While the exact legal landscape is speculative, these predictions provide a map for the road ahead. Armed with this information, employers can stay attuned to these indicators and navigate upcoming developments confidently.

About Orange Tree Employment Screening

For more than 30 years, Orange Tree has provided technology-enabled background screening, drug testing, and occupational health services that are fast, easy to use, and can be tailored to the unique needs of each employer. We’re here to help you stay on top of the latest trends in background and drug screening, along with remaining compliant with longstanding laws.

To get started with a background screening program tailored to your needs, you can schedule time to speak with our team.