Mid-Year Compliance Check-In Key Compliance Trends Related to Hiring & Screening With Angela Preston of Sterling

William Tincup: [00:00:00] This is William Tincup, and you’re listening to the Recruiting Daily Podcast. Today we have Angela on from Sterling, and we’re going to be doing the mid year compliance check in. It’s always good to talk about compliance. Compliance actually drives HR and recruiting, and a lot of people make fun of it on some level, but truth is, without compliance, we would be in a lot of trouble.

I love these types of shows because, especially at the beginning of the year or mid year, because… Things change so fast in compliance, especially as it relates to hiring and screening. Angela, do us a favor and introduce yourself and sterling

Angela Preston: sure. Thank you. So I’m Angela Preston and I am Associate General Counsel for Corporate Ethics and Compliance at Sterling.

Sterling is the global leader in background screening. We are a global company and, just a little bit about [00:01:00] our our goals and our values and how we serve. The world is really providing the best in class background screening services where, we value the people part of the business we approach things people first, we’re always, minding what our clients need and how that affects their constituents, including, of course, the candidates and we have a history in the market with our expertise and technology and creating really a seamless experience.

That’s a little bit about Sterling. I’ve been with Sterling for seven years. I joined the company by way of acquisition and my history in… The legal world has really been a career focused on the compliance and legal aspects of background checks. Prior to joining Sterling, I worked for a number of other screening companies and also Spent a [00:02:00] lot of time sort of leading some policy initiatives in the screening world through our various trade associations, the Professional Background Screeners Association.

I was chair of that organization and served on the board of that organization for about 10 years. I also served with the Consumer Data Industry Association, CDIA. As head of the background screening arm of that organization so I’ve really focused my career on all of the sort of complicated issues around screening, compliance, and it is a regulated type of service it’s regulated at the federal, state, and local level so there’s a lot of complexity to it, and And I work with Sterling primarily and guiding Sterling and creating the right services to serve our clients in [00:03:00] this world.

But I also work directly with a lot of clients in sharing best practices and how to really create a better experience for their candidates, which ultimately drives success all around. I could,

William Tincup: I could talk to you for hours because I have so many questions, but, so let’s do the, what is what should people be thinking, practitioners, HR and recruiters, what should they be thinking about mid year?

Things that might’ve come online or were about to come online, et cetera. It’s that they’re not paying attention to. What are those

Angela Preston: things? Yeah, so these things are cyclical a bit because, we work in, in legislative cycles at the state level and even at the local level so what you see often at the end of a legislative session, there’s a flurry of legislation and regulations that get enacted or get passed for, future [00:04:00] Future implementation.

And, I think that sometimes in the middle of the summer and this time of year, you are, things slow down a little bit in the business world, but a lot of the things that may be passed at the end of the year. Are cranking up or starting to roll out, depending on whether it was a six month implementation or a full year enactment.

A few of the things that have been hot with background screening as it impacts HR and the hiring community are really around criminal records, SRAs. And they’re, over the past couple of years, we’ve seen a lot of trends around fair chance laws. Those, that sort of body of law came about as an effort to really ensure that we were addressing, as a society and as a matter of policy addressing the potential for [00:05:00] discrimination against groups that might be more likely to have a criminal history and the new wave that we’re seeing takes Fair Chance a step further, and it’s it’s a new initiative that kind of goes under the banner of clean slate laws.

Are you familiar with that term? I

William Tincup: am, but to the audience, let’s just give them a high level review

Angela Preston: of clean slate, we’re talking about policies that not only address So that’s how you can screen a candidate, but actually the records that are available for screening. In other words clean slate laws give the candidate or the individual an opportunity to basically get their record cleared before they are even subject to a background check.

That can happen in a number of ways. One might be [00:06:00] that the law says we’re going to automatically remove from the court record this These types of records, and they may define certain categories of records that will actually get automatically erased.

William Tincup: Is that similar or different from expunged?

Angela Preston: It’s similar to expunged, but usually with an expungement, the individual has to petition the court. Got it. To get their record expunged and the big difference with clean slate is that the law is saying look, court clerks, administrators, keepers of the record, you actually have to cleanse the record, purge the record of these things.

William Tincup: And these are obviously uncertain types of criminal activity and maybe a time, a distance between when the criminal offense happened and How do they make that decision? I’m sure it’s pretty easy to figure out, but how [00:07:00] do they know what to clear and what not to clear?

Angela Preston: It’s not so easy, actually. It’s all over the place.

William, you’re wrong. No this is the challenge for employers, I think, as we’re thinking about these laws, and, okay so we know that these laws are going into effect, but how do they impact your policies and your program for screening, and what can you expect? The laws are all over the place.

Some laws, some, because they can be affected You know, it could be different state by state, and they are different state by state. Michigan, for example, expands the eligibility to file a petition for certain types of things, and then auto expunges other types of things. It could be, Misdemeanors only, it could be it might include your arrest record or in other areas it may not include an arrest record it may be automated or there may be some level of petitioning required even even if it’s [00:08:00] a rubber stamp, the individual may have to file something to get it to kick off or trigger it and it may be based on an amount of time but that amount of time might be four years, it might be seven years, it might be ten years depending on the level of the offense.

William Tincup: You’ve seen, obviously, there’s federal regs, and sometimes the states, not sometimes, the states deviate from that, and and have either special things that they have. Have you seen anything at the municipal level?

Angela Preston: With Clean Slate, it’s typically happening at the state level. Got it. But, it doesn’t have to, it doesn’t have to, but the reality is the court systems in the United States are arranged like they’re they’re created by Thank you.

on a county level. And then sometimes those counties filter up to the state level. So got it. And some of these states, the states on the forefront of this have usually have [00:09:00] some sort of unified state court system. So what we’re typically seeing here are states and they’re basically saying this applies to Our unified court system but even if there is a uniform law that addresses the state, there could be different counties might be using different software, just break it down to a level that everybody can understand different counties might be using different software.

So how they put these things into effect, it can be very, Challenging and complex for the states to implement where they are expected to cleanse these records so they can take, these laws take time to fully implement the Michigan law was passed in 2020 and we only just this year really saw it roll out and the impact of it really, How do you,

William Tincup: Dumb question alert.

How do you make sure that your clients in Michigan know, or maybe [00:10:00] not even in Michigan, those that are hiring candidates that are in Michigan, because where does the law apply? And again, dumb question alert. Is it the, where you’re hiring from or where the candidate is

Angela Preston: located? No, that’s a great question.

The law applies, in the case of these clean slate laws, it applies in the state where the record resides. Got it. You could have a candidate who is based in Texas, but their record was in Michigan and if they had a history, if they previously lived in Michigan or whatever that Michigan record is going to be impacted by the Michigan law.

Got it. So it doesn’t really follow the person. It, it really is specific to where the record is housed with these particular laws. But if you’re an employer and you’re hiring people all over the country I think you asked, how do we let clients know and how do we, how does it affect the [00:11:00] employer community?

We let our clients know that these things are coming along and that this is going into effect. So that they understand that they will run a background check and these records will no longer be available because they, if they’re not available at the court, they’re not available to Sterling or any other background screening company.

So what we do is, We let our clients know through our typical channels. We do blog posts, we do email notifications, we, we push this information out as do, many other news and media outlets and other companies. But we let our clients know that this information will no longer be available, generally speaking.

And so you need to anticipate, like with your screening program, that if you typically look at a [00:12:00] person’s history and want to see felonies and misdemeanors, in some places, some of these misdemeanors are going to disappear. Some of these low level felonies are going to disappear. I think that, an employer may not have to change anything in their program because this is going to happen on the back end, but they need to know that they’re not getting the information that they used to get. And they may want to think about their program a little bit differently. And the other thing to mention…

Yeah, go ahead. Just to further complicate things is that there are a number of exemptions, as there always is with any sort of legislation like this. If you are in a certain category, if you’re hiring for law enforcement, for example you may still have access to those records. So you have to know, too, if you’re in a special category, you may be exempt.

So we

William Tincup: always define special category first, [00:13:00] just

Angela Preston: real quick. Yeah. Like a special category would be hiring a peace officer or, someone that requires a federal security clearance they would have access to this information and and that, that is. Really, an education piece where, we always tell folks, we’re flagging these issues for you, we want to help you navigate all of this stuff, but ultimately, you need to know your own business and you need to know what’s what and, we like to always tell folks, get with your counsel, understand how this might impact you.

Your specific use case or, the nuance of your particular business case.

William Tincup: Yeah, I can see a lot of training going into this in terms of, because there’s so many people involved, sourcers, recruiters, hiring managers, HR, et cetera, making sure that they understand that. [00:14:00] Screening is fluid, it’s not carved in stone or marble or whatever that it changes.

And and I can see, especially with hiring managers, HR, they’re pretty steeped in compliance. I think they get it recruiters, yes, but hiring managers, they, man, they don’t. Really, they’re not, that’s just not their world. They have jobs. They’re doing other things. I wonder how we push the message to them in terms of what can be asked, what can’t be asked, what’s going to be on the screen, what won’t be on the screen and why.

Like all of those things so that they understand and don’t make any mistakes. Because I can see if someone doesn’t know, if they haven’t been trained properly, them asking questions. Even though they’re not supposed to, it happens every day, I could see them making mistakes like that.

Angela Preston: Yeah.

It’s it’s complex. There’s no question. And you have a number [00:15:00] of different regulators and different points of information that you have to, be aware of and understand because a lot of the fair chance laws are really anti discrimination laws. That require you to take certain things into account, like you’re not, you can’t consider the criminal history until you’ve already made a conditional offer, or you’ve already searched and looked at other things like, employment verification and done your reference checks and so on but then these laws really have to do with The data that’s available, like the information that’s on the record, but they both have the same goal, which is to open up opportunities for those folks who have a criminal history and are trying to reenter the workforce and trying to get a fair shot at a job.

Is

William Tincup: there any other deadlines or things that are [00:16:00] coming up like in the next six months maybe by the end of the year that they should at least know that this is around the

Angela Preston: corner? There, there are there are other things that are definitely on a rolling and effective date type of cycle.

I think that one of the things that we just saw Go into effect in the city of New York was the law or the ordinance around automated decisioning tools automated employment decisioning tools and the use of AI in the construction of tools that may have an impact on employment decisions You know that just went into effect We’ve got you know a number of things that are typically the, a lot of the effective dates are around the first of the year January 1, or it’s more common to have [00:17:00] that like an effective date be in January.

So that’s why we typically do like an end of the year, update to say, all right, are you ready for January 1 in 2024 and a lot of the marijuana laws that we saw go that were passed in the past, in this past year go into effect in January. So I would say the things that we’re looking at, the other sort of big trending items would be laws around communityLC The use of A.

I. in employment decisioning and, some of the marijuana laws around, when you can consider marijuana and whether or not, there’s, some of the states also opened up recreational use as well as medicinal use of marijuana. So yeah, that’s another big trending item that is noteworthy.

Well,

William Tincup: and some of the states have opened up some of the [00:18:00] psychedelics, mushrooms in particular. If people were having diff if employers were having difficulty with navigating THC and marijuana, Adding to that another layer of of drugs again, if it’s legal in that state, I’ve always, I know your customers have these questions, but again, where does the law apply if, especially with remote work if I live in Denver and I, and I, there’s an edible shop right next to me, but the company has a.

Either on the front end with pre hire, or even in the employment side, if you can’t have THC in your system or the drug test, et cetera where does the law, where does the law apply?

Angela Preston: Yeah. The thing to remember about the drug laws, you have to first consider the fact that. Whether or not it is a federally controlled substance, so the fact that [00:19:00] marijuana is still a, a federally controlled substance and is illegal at the federal level you do have this additional layer of consideration of, at the state or local level because some states may allow medical use, Some may allow adult use or, quote unquote recreational use, and some may allow both and so first of all, you have to keep in mind that regardless of the state allowing certain uses you can still regulate your workplace under federal law, and you can also regulate impairment.

Just because someone can Use medically or for adult use, depending on the job and the role if someone is impaired on the job, you are allowed to [00:20:00] have a safe workplace and create your safe workplace conditions. So that is something just that. Employers need to be grounded in and not get,

William Tincup: it’s the the easy part of that.

The easy, and you deal with this every day, Angela, it’s the, forklift driver, real easy. Someone that’s in mining, totally easy. They shouldn’t, it’s the demand generation marketer. Yeah, where do you draw the line as to workplace safety again, especially with remote or hybrid work or something like that?

I find that fascinating, but I know that every employer, they’re dealing with risk, management, mitigation. And so they’ve got to look at all, they’ve got to weigh all these things.

Angela Preston: Sure, yeah, and the safety sensitive stuff is This is a no brainer, that’s the easy case and it’s a little bit further complicated with a substance like marijuana where we’re getting [00:21:00] better at this, but we don’t, we haven’t quite hit the point where it’s readily available is how to test for impairment.

William Tincup: Because

Angela Preston: you, the employer’s in a horrible spot because, Like California passed the the recent law in September of last year, it was AB 2188, Discrimination in Employment and the Use of Cannabis, Where, the California law requires the employer to prove that a person is not here.

And

William Tincup: how do you do, how do you do

Angela Preston: that? Yeah, it’s really hard to enforce or, enforce your policy if you’re an employer. And again the testing companies have stepped up for sure. They are answering this challenge and coming up with some really… Innovative new solutions that, we’re excited to, to look at, but until, things are tested and vetted and mainstream[00:22:00] it’s still, Yeah.

William Tincup: I saw this at SHRM. A lot of the folks that came out of COVID really on the pharma side that developed a lot of these at home kits. They started to kind of branch into HR and drug testing in particular. And so it’s fascinating again, still don’t know the I don’t know. I still don’t know how employers are going to implement that, especially in a remote environment.

In an office environment or a warehouse environment, I think that’s a little bit easier. If Timmy’s on a forklift seems to be impaired, Timmy takes a test. Okay. I can get my hands around that. It’s when Timmy’s in working from Paris like by the time the test gets to Timmy’s not impaired anymore.

So what do we do there? But I do have one last question is, and because you deal with you, you help consult with customers, which I absolutely love. What’s the number one question that, or [00:23:00] what keeps them up at night? You just hear it over and over, maybe formed in different phrases and all that stuff, but things that just, this is going to come up in this conversation.

Angela Preston: Yeah. Honestly, I think that there’s a, I hate to, Go here, but I think that one of the big fears is really the litigation and are we going to get dinged either by a regulator on a large scale enterprise level with some sort of an investigation or are we going to get hit with the class action because the laws that really regulate and are there to protect consumers are very technical and full of a lot of little landmines that are easy to trip over if you’re not super buttoned up in your program.

I think that the most common questions that [00:24:00] we get and the things that are keeping clients up at night are things like the big, the big lawsuits or regulatory investigations that can work If not take you out, at least sidetrack your team for a very long time.

William Tincup: And it’s, especially if it was preventable if it was something that was preventable.

Last question. And I knew I said the last question was the last question, but the, just really quickly, do you find yourself also interacting with in house counsel?

Angela Preston: Oh, absolutely. Absolutely. I love working with in house counsel. They’re, the best partners. Yeah, they get it. They get it. And, we all want the same thing, which is, we want our clients to have a great program.

We want their candidates to have a great experience. And, we all want to get along. Understand what is the best practice and how do we get there? How do we do it the right way? And [00:25:00] those are complex goals, but but I love working with with the outside counsel, with the in house counsel and the truth is, Everyone involved in this particular function is, so much better educated today than maybe 10 years ago.

Oh yeah.

William Tincup: Oh my gosh, yes. Years ago.

Angela Preston: It’s really flying blind. Yeah. So it’s very satisfying to work with our clients on these issues.

William Tincup: I could talk to you forever, but you’ve got other things to do today. Angela, thank you so much for coming on the podcast.

Angela Preston: Oh, thanks for having me.

William Tincup: Absolutely. And thanks for everyone listening. Absolutely. And until next time.