Compliance Corner

California AB 2095: Refining the “Fair Chance” Process

California’s hiring landscape is known for its complexity, and Assembly Bill 2095 (AB 2095) looks to add another layer of precision. As a proposed update to the state’s existing Fair Chance Act, this bill aims to tighten the “ban-the-box” rules, ensuring that criminal history is only considered when it is directly relevant to the position. 

What AB 2095 Would Change

While current laws already restrict when employers can ask about criminal history, AB 2095 focuses on the how. The goal is to eliminate indirect pressure on applicants to disclose their past before a formal assessment is made.

Under the bill, covered employers would be prohibited from:

  • Requesting consent for a conviction history background check before providing applicants with a written description of the specific job duties for which a conviction could be disqualifying.
  • Initiating a conviction history check before that job‑duty information is provided.
  • Requiring applicants to pay for any conviction history background check.
  • Requiring applicants, before or after a conditional offer, to disclose convictions or provide documentation related to convictions or rehabilitation.

Compliance Steps

If passed, AB 2095 would require employers to be more deliberate and transparent before any criminal history screening occurs. This includes:

  • Updating offer letters, disclosures, and authorization forms to ensure proper sequencing and content;
  • Confirming that job‑specific risk and duty information is clearly documented and provided to applicants before requesting screening consent; and
  • Coordinating closely with background screening vendors, particularly where vendors host or manage employer forms.

Failure to align hiring practices with AB 2095 requirements could increase exposure to discrimination claims under California’s civil rights laws.

 

Disclaimer: This communication is for general informational purposes only and does not constitute legal advice. The summary provided in this alert does not, and cannot, cover in detail what employers need to know about the amendments to the Philadelphia Fair Chance Law or how to incorporate its requirements into their hiring process. No recipient should act or refrain from acting based on any information provided here without advice from a qualified attorney licensed in the applicable jurisdiction.

April 14th, 2026|Categories: Compliance Corner, Employment Decisions|Tags: , , |

Does the Fair Credit Reporting Act (FCRA) Apply to Background Checks of Law Partners?

It depends on who you ask. The Federal Trade Commission (FTC) has long taken the position that the FCRA should be interpreted broadly, and in its guidance, treats “employment purpose” as covering not only traditional employees, but also non‑traditional workers such as independent contractors, freelancers, temporary workers, and volunteers.  However, in recent years, a few federal district courts have issued opinions that don’t align with the FTC’s guidance and instead use a strict common-law definition of the employer-employee relationship.

Because there’s no clear answer and the FCRA does not account for modern law firm partnership tiers, a hybrid compliance approach may be the best practice for avoiding FCRA liability.

Background Checks are Consumer Reports When Used for an Employment Purpose

The FCRA regulates information contained in consumer reports in order to protect the consumer’s privacy, promote fairness, and to guarantee the data reported is as accurate as possible. When a background check is used for employment purposes, it is considered a consumer report, and the requirements of the FCRA apply, including disclosure, authorization, and adverse action, as well as applicable state and local laws and regulations.

The FCRA defines the term “employment purposes” as evaluating a consumer for “employment, promotion, reassignment or retention as an employee.” It is important to note that the FTC interprets the ending phrase “as an employee” in the definition of “employment purposes” as modifying only “retention,” and not the words “employment, promotion, reassignment” preceding it.

Equity v. Non-Equity Partners and the FCRA 

Equity partners typically share profits and losses, contribute capital, and participate in governance. Non‑equity partners, by contrast, often receive fixed compensation, do not bear profit‑and‑loss risk, and remain subject to the firm’s control. In practice, non‑equity partners frequently resemble senior employees. Distinctions can also be made between candidates for partner who are recruited from outside the firm and associates being evaluated for promotion to partner.

Law firms should consider a hybrid compliance model that establishes separate screening policies for partner candidates recruited from outside the firm, for existing equity partners, and for candidates with an existing employment relationship with the firm, such as associates or non-equity partners. Background checks for associates and non‑equity partners should generally be treated as subject to the FCRA’s employment‑purpose requirements.

For outside partner candidates and equity partners, firms may instead rely on a non‑employment permissible purpose under the FCRA: “the written instructions of the consumer.”

Key Takeaways

  • Titles do not control—structure and control do
  • Default to FCRA employment purpose compliance for non‑equity partners
  • Apply FCRA employment purpose rules to internal promotions
  • Ensure screening vendors and internal teams align on the permissible purpose

 

Disclaimer: This communication is for general informational purposes only and does not constitute legal advice. The summary provided in this alert does not, and cannot, cover in detail what employers need to know about the amendments to the Philadelphia Fair Chance Law or how to incorporate its requirements into their hiring process. No recipient should act or refrain from acting based on any information provided here without advice from a qualified attorney licensed in the applicable jurisdiction.

April 13th, 2026|Categories: Compliance Corner, Employment Decisions|Tags: , , |

The Quiet Risk in Background Screening: How Compliance Drift Takes Hold

Compliance failures aren’t usually the result of one big mistake. Instead, they happen through a compliance drift–the slow, quiet decoupling of your written policies from the ever-changing laws and daily operations. In background screening, “standing still” is the fastest way to fall out of compliance.

Why Programs Drift

Your policy might be static, but the world around it isn’t. Drift happens because:

  • Regulations move faster than handbooks: state and local Ban-the-Box, credit check, or salary history laws sometimes change quarterly, or even monthly, not annually.
  • Operational shortcuts become the norm: recruiters under pressure to hire may skip steps or run screens early, creating “shadow processes” that bypass legal safeguards.
  • Tech updates rewrite your rules: vendors update platforms and data sources; if you haven’t reviewed your settings lately, your software might be making decisions your policy doesn’t authorize.
  • Growth outpaces governance: M&A activity and remote hiring across new borders often introduce legacy risks that never get fully integrated or vetted.

The Warning Signs

Is your program drifting? Watch for these red flags:

  • “That’s how we’ve always done it”: the most dangerous phrase in compliance.
  • Policy ghosting: your manual references vendors or tools you no longer use.
  • Inconsistency: similar roles are being screened using different packages or criteria.
  • The “exception” rule: you have more undocumented “rush” hires than standard ones.

How to Anchor Your Program

To stop the drift, move from passive administration to active governance.

  1. Assign an Owner: Compliance shouldn’t be “implied.” One person must own the bridge between Legal, HR, and the Vendor.
  2. Audit the Workflow, Not Just the Paper: Don’t just read the policy; watch a recruiter or HR actually initiate a screen. Gaps often hide in the clicks, not the text.
  3. Sync with Your Vendor: Regular check-ins and platform reviews are essential to ensure that the search strategies, screening packages, configurations, data sources, and decision tools still align with your policy and risk tolerance.

The Bottom Line: Compliance drift is silent until it’s deafening. If you aren’t actively managing the gap between what your policy says and what your business does, you’re already behind.

 

Disclaimer: This communication is for general informational purposes only and does not constitute legal advice. The summary provided in this alert does not, and cannot, cover in detail what employers need to know about the amendments to the Philadelphia Fair Chance Law or how to incorporate its requirements into their hiring process. No recipient should act or refrain from acting based on any information provided here without advice from a qualified attorney licensed in the applicable jurisdiction.

March 27th, 2026|Categories: Compliance Corner, Employment Decisions|Tags: , |

Applicant Data Poisoning: Can You Trust What You See?

For years, employers relied on a candidate’s digital footprint as an honest record. Resumé databases and automated “scrapers” created a convenient digital paper trail that made hiring fast.

That era is over. A trend called Data Poisoning is allowing job seekers to manipulate or completely manufacture their professional identities using AI. When a past can be rewritten with a single prompt, automated screening tools lose their footing.

The result? A hiring ecosystem where digital signals can no longer be taken at face value.

The Anatomy of a Digital Lie

AI has turned the professional past into a sandbox. Data poisoning typically falls into three categories:

  • Scrubbing the Past: AI “cleanup” tools erase years of unprofessional content or rewrite profiles in seconds to fit a new narrative.
  • Fabricating Histories: Generative AI creates flawless resumés, invented career trajectories, and portfolios for companies that never existed.
  • Forging Identities: Sophisticated “synthetic” personas now use deepfake selfies and manipulated IDs to bypass basic automated verification.

The Cure: Traditional Direct-Source Verification

Direct-source verification, which is the hallmark of a traditional, rigorous background check bypasses manipulated digital footprints by going straight to the origin.

  • Employment: Verify titles, dates, and details directly with HR or the payroll department, and not LinkedIn or through contact information supplied by the applicant.
  • Education: Confirm degrees and attendance with the registrar of the issuing institution, and check to ensure that the school is accredited.
  • Licenses: Validate credentials through real-time checks with official licensing boards.

Spotting the “Too Perfect” Candidate

AI-generated profiles often lack the “messy” markers of a real career. The red flags typically include social profiles with no organic history or recent bulk edits, and overly generic, AI-polished language that lacks specific local or industry context.

The Bottom Line: Don’t Just Scan–Verify

Data poisoning isn’t a theoretical risk; it is an active strategy used to bypass automated filters. In an era where anyone can rewrite their digital past, the strongest hiring decisions don’t come from a faster algorithm–they come from confirming what is real at the source.

 

Disclaimer: This communication is for general informational purposes only and does not constitute legal advice. The summary provided in this alert does not, and cannot, cover in detail what employers need to know about the amendments to the Philadelphia Fair Chance Law or how to incorporate its requirements into their hiring process. No recipient should act or refrain from acting based on any information provided here without advice from a qualified attorney licensed in the applicable jurisdiction.

March 19th, 2026|Categories: Compliance Corner, Employment Decisions|Tags: , |

The Hiring Line: Work Authorization, Sponsorship, and E-Verify

You have 10 open roles and 100 applicants, and you want to know now who can actually work. But in the eyes of the law, curiosity can look a lot like discrimination. To protect your company, you need to know exactly where the “No-Go” zone begins.

The Pre-Offer “No-Go” Zone

Until you’ve extended a formal offer, your curiosity is legally capped. Federal guidance (under the INA) is a “two-question only” territory.

You CAN ask:

  1. “Are you legally authorized to work in the United States?”
  2. “Will you now or in the future require sponsorship for employment visa status?”

You CANNOT ask:

  • “Are you a U.S. citizen?”
  • “What is your visa type?” (H-1B, L-1, etc.)
  • “Can I see your Green Card or Passport?”
  • “Where were you born?”

Digging into citizenship or requesting documents too early is considered a discriminatory hurdle. Unless you fall under a narrow exception, it’s a fast track to a DOJ audit.

The Narrow Exception

There are limited situations when you can ask about citizenship upfront. This only applies if a law, executive order, or government contract requires it. Examples include:

  • Federal jobs: specific roles requiring U.S. citizenship.
  • Export controls: positions dealing with ITAR/EAR (defense and high-tech) where access is restricted by nationality.
  • Security clearances: roles that require a “Secret” or “Top Secret” stamp from the government.

E-Verify is for Post-Offer Only

E-Verify is a web-based system operated by the USCIS that electronically compares a new hire’s Form I-9 information with DHS and SSA records to confirm work authorization. It’s free and voluntary for most employers, although mandatory for certain federal contractors and by some states as a condition of business licensing or employment practices. Employers must create an account and sign a Memorandum of Understanding (MOU) with DHS and SSA before using E Verify.

Here’s the E-Verify flow:

  • Employee accepts an offer
  • Employee completes Form I-9
  • Employer enters I-9 data into E Verify
  • System checks the data against SSA and DHS records
  • Employer receives results

What Can Background Screening Companies Do?

Background screening companies must follow the same pre‑offer rules as employers, meaning they cannot check, request, or verify citizenship, visa type, or immigration status.

After a conditional offer, they can help verify work authorization only by reviewing the documents the employee provides for Form I‑9 and running E‑Verify, providing they are registered as an E‑Verify Employer Agent and the employer is enrolled. (Employers must still sign the MOU with the DHS and remain legally liable for any compliance slip-ups.) ‑

 

Disclaimer: This communication is for general informational purposes only and does not constitute legal advice. The summary provided in this alert does not, and cannot, cover in detail what employers need to know about the amendments to the Philadelphia Fair Chance Law or how to incorporate its requirements into their hiring process. No recipient should act or refrain from acting based on any information provided here without advice from a qualified attorney licensed in the applicable jurisdiction.

March 10th, 2026|Categories: Compliance Corner, Employment Decisions|Tags: , |

Politics in Employment Screening

As political expression becomes increasingly visible online, employers face a difficult question: Does political activism have a place in personnel decisions? While much of this information is publicly accessible, its use in hiring is governed by a complex web of federal, state, and local laws. Employers must carefully distinguish between protected political expression, criminal conduct, and in limited circumstances where political contributions may create regulatory compliance obligations.

Screening for Cultural Fit Based on Politics

Using political views or lawful participation to assess a cultural fit is a risky strategy. While federal law does not explicitly protect political affiliation for private-sector employees, many states (such as California, New York, and Colorado) and local jurisdictions do. Even in “at-will” states without specific political protections, using political beliefs as a filter can inadvertently create a discrimination claim. This occurs if political views correlate with protected characteristics like race, religion, or national origin.

Lawful Political Activity vs. Criminal Conduct

Peaceful rallies, advocacy, volunteering, and public expression are generally protected by state-level “off-duty conduct” laws. If an individual engages in rioting, vandalism, assault, or trespassing for example, an employer may consider the criminal offense. The focus must remain on the illegal act, regardless of whether it was motivated by a political cause. When evaluating such criminal history, employers must still adhere to “Fair Chance” or “Ban-the-Box” laws, which dictate when and how employers can ask about a candidate’s record.

When Political Donations Matter

In the financial sector, political screening is not just a choice—it is often a regulatory requirement. Under SEC Rule 206(4)-5, certain political contributions by “covered associates” can trigger a two-year ban on the firm receiving compensation from government clients. To remain compliant, firms may conduct political contribution reviews for relevant roles. These reviews typically cover the previous two years (or six months for certain new associates). This screening must be used strictly for regulatory compliance, not to vet a candidate’s personal ideology.

 Bottom Line

Political screening can be a legal minefield. When handled with precision, background screening supports regulatory obligations; when handled poorly, it invites discrimination lawsuits.

 

Disclaimer: This communication is for general informational purposes only and does not constitute legal advice. The summary provided in this alert does not, and cannot, cover in detail what employers need to know about the amendments to the Philadelphia Fair Chance Law or how to incorporate its requirements into their hiring process. No recipient should act or refrain from acting based on any information provided here without advice from a qualified attorney licensed in the applicable jurisdiction.

March 5th, 2026|Categories: Compliance Corner, Employment Decisions|Tags: , |

Googling Job Applicants: Legal? Yes. Risky? Yes.

In today’s hiring landscape, it’s almost second nature for employers to type an applicant’s name into Google or check out their social media. If the information is public, it must be fair game, right?

Not exactly. While you can look, doing so without a structured process can expose your organization to significant legal and compliance risks.

Public Information Is Accessible But Comes With Hidden Liability

Employers may view publicly available online content without obtaining specific authorization. However, a simple search can unintentionally reveal protected characteristics such as age, race, religion, disability status, or pregnancy. Once discovered, this information could fuel discrimination claims if the applicant later challenges a hiring decision. The principle is simple: what’s seen can’t be unseen, and that creates risk.

Private Accounts Are Off-Limits

No employer should ever:

  • Request social media passwords
  • Ask applicants to access private accounts
  • Send “friend” requests to gain entry
  • Ask for screenshots of private content

In California, these actions are illegal under Labor Code § 980. Many other states have enacted similar protections.

FCRA Applies If Using An Outside Service

If an employer hires any third-party service to review an applicant’s online presence, the process becomes a consumer report under the Fair Credit Reporting Act (FCRA).That means employers must:

  • Provide a standalone written disclosure
  • Obtain written authorization
  • Follow pre-adverse and adverse action procedures before rejecting based on the report

Ignoring FCRA obligations is one of the most common and expensive hiring pitfalls.

Best Practices To Reduce Risk

To protect your organization and ensure a fair, compliant hiring process:

  • Create a structured, consistent process for any online screening.
  • Use a “firewall” between the person viewing online content and the final decision-maker.
  • Limit reviews to public, job-related information only.
  • Document your screening approach and maintain it across roles.
  • Apply the same process to all candidates to avoid disparate treatment.

 

Disclaimer: This communication is for general informational purposes only and does not constitute legal advice. The summary provided in this alert does not, and cannot, cover in detail what employers need to know about the amendments to the Philadelphia Fair Chance Law or how to incorporate its requirements into their hiring process. No recipient should act or refrain from acting based on any information provided here without advice from a qualified attorney licensed in the applicable jurisdiction.

February 24th, 2026|Categories: Compliance Corner, Employment Decisions|Tags: , |

Your Next Hire Is Online. Here’s How to Screen Them Legally.

Social media screening is legal, but only if done right. Here are the essentials.

Federal nondiscrimination laws still apply.
Anything that reveals protected characteristics (race, religion, disability, age, pregnancy, etc.) cannot influence a hiring decision.

Using a third‑party screener? That triggers the FCRA.
Employers must provide a standalone disclosure, get written authorization, and follow pre‑adverse and adverse‑action steps. Accuracy rules also apply and the CFPB is enforcing them more aggressively.

28 states restrict employer access to personal social media.
Most ban requesting login credentials, requiring applicants to log in on the spot and demanding they add HR as a “friend.” In some states, even asking for a username may create risk.  

Public vs. private content matters.
Employers may review public posts but accessing private content without permission can violate the federal Stored Communications Act.

NLRA protections apply online.
Employees’ posts about wages or working conditions may be protected concerted activity. Don’t treat them as negative findings.

California adds extra compliance layers.
ICRAA and CCRAA impose stricter disclosures when using third‑party screeners.

Best Practices

Use a consistent, documented process focused ONLY on job‑related behaviors (e.g., threats, fraud, harassment). Keep decision makers away from protected information. Never request access credentials. Stick to public content. And follow the FCRA if a third-party is involved.

 

Disclaimer: This communication is for general informational purposes only and does not constitute legal advice. The summary provided in this alert does not, and cannot, cover in detail what employers need to know about the amendments to the Philadelphia Fair Chance Law or how to incorporate its requirements into their hiring process. No recipient should act or refrain from acting based on any information provided here without advice from a qualified attorney licensed in the applicable jurisdiction.

February 5th, 2026|Categories: Compliance Corner, Employment Decisions|Tags: , , , |

Bankruptcy Records: Credit Reports Erase Them But Employment Background Checks Find Them

Many people assume that once a bankruptcy drops off their credit report, it disappears everywhere.

Not true. And this difference matters, especially for employers and job seekers.

Credit Reports Follow Standard FCRA Time Limits

Under the Fair Credit Reporting Act (FCRA), national consumer reporting agencies (TransUnion, Experian, Equifax) must remove bankruptcies after specific time periods:

  • Chapter 7: reportable for up to 10 years
  • Chapter 13: typically removed after 7 years, sometimes sooner
    Once these limits are reached, credit bureaus delete the record entirely, meaning they cannot provide it for any purpose, including employment screening.

Employment Background Checks Work Differently

Employment screening companies are also consumer reporting agencies under the FCRA, but they don’t rely solely on credit bureaus. They frequently pull records directly from the courthouse, which may contain older bankruptcy filings long after the credit bureaus deleted them.

Under the FCRA’s $75,000 salary exception, employment background check companies may report adverse information with no time limit. So if a bankruptcy exists in public court records, it may still appear on an employment background check even though it no longer appears on a credit report.

State Reporting Laws Add Another Layer

Several states have their own rules on how long bankruptcy records may be reported in employment background checks–specifically California, Colorado, Kansas, Maryland, Massachusetts, Montana, New Hampshire, New Mexico, New York, Texas, and Washington. California, for example, prohibits reporting a bankruptcy that is more than 10 years old measured from the date of the relief order, unless a narrow exception applies.

Bottom Line

A bankruptcy “dropping off” your credit report does not guarantee it disappears from employment background checks. Different rules, different timelines.

 

Disclaimer: This communication is for general informational purposes only and does not constitute legal advice. The summary provided in this alert does not, and cannot, cover in detail what employers need to know about the amendments to the Philadelphia Fair Chance Law or how to incorporate its requirements into their hiring process. No recipient should act or refrain from acting based on any information provided here without advice from a qualified attorney licensed in the applicable jurisdiction.

January 29th, 2026|Categories: Compliance Corner, Employment Decisions|Tags: , , , , , , , , , , , , |

Can Employers Charge Job Applicants for Their Background Check?

When candidates apply for a job, they expect a thorough screening process: interviews, reference checks, and often a formal background check. But can an employer require a job applicant to pay for their own background check?

The answer is more nuanced than a simple yes or no. It depends on state law, federal wage-and-hour rules, and how the background check is conducted.

Federal Law: No Direct Prohibition, but Important Limits

At the federal level, there is no law that explicitly prohibits an employer from requiring applicants to pay for a background check. The Fair Credit Reporting Act (FCRA) regulates how background checks must be conducted but it does not regulate who must pay for the screening.

However, the federal Fair Labor Standards Act (FLSA) does impose limitations once a person becomes an employee. Employers cannot deduct background check costs if doing so would reduce the individual’s pay below the minimum wage for that workweek. While this usually applies to employees, not applicants, it still influences how some states treat pre‑employment expenses.

State Laws: The Deciding Factor

State legislation determines whether an employer can charge job seekers for the cost of a background check. And many states say no. These include: California, Louisiana, Minnesota and Vermont.

In states without specific prohibitions, employers may legally require applicants to pay for background checks as long as the practice does not violate any other wage, consumer protection, or hiring transparency rules.

Should Employers Charge Applicants?

Even in states where charging applicants is legal, many employers avoid it for several reasons:

  • Competitive Disadvantage

Requiring applicants to pay, especially lower‑wage candidates, may shrink an employer’s talent pool.

  • Perception and Candidate Experience

Applicants may view the request as unfair or predatory, damaging employer reputation.

  • Administrative Burden

Collecting fees, issuing reimbursements, and maintaining compliance increases operational complexity.

 

  • Equity Concerns

Cost‑shifting disproportionately impacts economically vulnerable job seekers.

For these reasons, most employers see background check costs as part of doing business.

 

Disclaimer: This communication is for general informational purposes only and does not constitute legal advice. The summary provided in this alert does not, and cannot, cover in detail what employers need to know about the amendments to the Philadelphia Fair Chance Law or how to incorporate its requirements into their hiring process. No recipient should act or refrain from acting based on any information provided here without advice from a qualified attorney licensed in the applicable jurisdiction.

January 15th, 2026|Categories: Compliance Corner, Employment Decisions|Tags: , , , , , , |
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