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Legal describes anything that is permitted, defined, or enforceable under the law. It encompasses rules created by legislatures, interpreted by courts, and implemented by regulatory agencies. Legal concepts rely on precise definitions, consistency, and authority, ensuring that rights, duties, and procedures are applied uniformly across cases and jurisdictions.

2026 Mid-Year Recap: Key Developments in Employment Background Screening

As we pass the midpoint of 2026, background screening compliance remains one of the most dynamic landscapes for Human Resources and employment law. State legislatures and local city councils are aggressively enacting applicant protections, changing how employers evaluate everything from criminal histories and consumer credit to drug testing and remote identity verification. Below is recap of the major state, local, and federal employment background screening developments that have taken effect in 2026 to date.

  1. Fair Chance & Local “Ban the Box” Mandates

Fifteen states, along with the District of Columbia and 21 localities have enacted Ban-the-Box laws, delaying criminal inquiries until after conditional offers while restricting specific categories of conviction data. Several have expanded their requirements in 2026:

  • San Francisco Fair Chance Ordinance (FCO) Amendments (Effective August 10, 2026):
  • Out-of-State Offense Protections: Explicitly bars employers from considering out-of-state convictions or arrests for conduct that is lawful in California (such as reproductive healthcare, gender-affirming care, and related care activities).
  • Tightened Timelines: Employers must acknowledge receipt of mitigating evidence submitted after a pre-adverse action notice within 14 days, and final adverse action decisions must be issued within 30 days.
  • Washington State (HB 1747 – Effective July 1, 2026): Implemented strict statewide Fair Chance mandates for employers with 15+ employees. Criminal convictions inquiries must be delayed until post-offer, non-conviction arrests and juvenile records are completely excluded, written individualized assessments are mandatory, and pre-adverse action review holds must last at least two business days.
  • Philadelphia (Effective January 6, 2026): Updated its Fair Chance Hiring law, shortening the permissible misdemeanor lookback period from seven years to four years and banning the consideration of summary offenses.
  1. Expansion of “Clean Slate” Automatic Record Sealing

Employers are prohibited from using automatically sealed or expunged records in adverse employment decisions even if a legacy database accidentally surfaces them. Fourteen states now operate active automated court record-sealing systems. The 2026 jurisdictions are as follows:

  • District of Columbia (Ramp-up Effective January 2026): Enacted its Second Chance Act, restricting early criminal history disclosures and mandating automatic expungements for minor and decriminalized offenses.
  • Virginia (Effective July 2026): Officially launched its automated Clean Slate court system to automatically seal qualifying low-level misdemeanors and non-violent offenses after statutory waiting periods.
  • New York Clean Slate Implementation: State court systems continue expanding the automated sealing of qualifying records (3 years for misdemeanors, 8 years for eligible felonies).
  1. Credit Check Restrictions

One of the most consequential shifts in employment background screening occurred this spring, further restricting the use of credit history in employment decisions:

  • New York State Employment-Purpose Credit Ban (Effective April 18, 2026): New York State expanded New York City’s long-standing Stop Credit Discrimination in Employment Act to cover all employers statewide. The law prohibits employers from requesting, using, or evaluating a candidate’s consumer credit history for hiring, compensation, or promotional decisions unless an exemption applies (positions that legally require credit checks, law enforcement/security clearance positions, or high-level fiduciary roles with direct signatory authority over significant financial assets).
  1. State Workplace Drug Testing Resets

Twenty-four states offer some protections against marijuana-related adverse employment decisions. Effective July 29, 2026, for reasonable suspicion testing, Maine now requires written documentation of specific “observable behaviors” prior to testing, and all employer testing policies must be pre-approved by the Maine Department of Labor.

  1. Form I-9 Enforcement & Remote Verification

Federal immigration authorities updated Form I-9 inspection and audit protocols early in the year, applying stricter financial penalties for procedural errors previously treated as minor technical violations. To combat identity fraud in remote hiring workflows, employers are increasingly pairing E-Verify protocols with automated digital document and biometric validation.

The Trend

The overarching trend is that background screening compliance is becoming increasingly local. Fair Chance laws, Clean Slate initiatives, individualized assessment requirements, record-sealing statutes, and drug testing regulations vary substantially by jurisdiction. For employers operating nationally, the greatest compliance risk often stems not from federal law, but from failing to adapt screening practices to state and municipal requirements.

 

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.

August 11th, 2026|Categories: Compliance Corner for Employment Decisions|Tags: , , , , , , , , , |

Arrest Records and Remote Staff: What Employers Need to Know After Saberin v. Alation

On July 30, 2026, the California Court of Appeal issued its decision in Saberin v. Alation, Inc., addressing an important question for employers navigating today’s remote workforce: Does California’s “no-arrest-record” statute, Labor Code section 432.7, protect employees who work remotely outside of California? The court concluded that, under the circumstances presented, the statute did not apply.

Case Background

Under California Labor Code Section 432.7, employers are generally prohibited from considering arrest records that did not lead to a conviction when making employment decisions like hiring or termination.

In Saberin, the plaintiff was a Utah-based remote engineer for a California-headquartered software firm. While on vacation in Florida, he was arrested but the charges were dismissed. After learning of the arrest, the company terminated his employment. The employee filed suit, arguing the termination violated California’s arrest record protections.

The Court’s Ruling

The Court of Appeal affirmed an arbitration award in favor of the employer, holding that California’s statutory protections did not apply. The court emphasized the longstanding presumption against the extraterritorial application of California labor laws, noting that:

  • The employee lived and performed all work in Utah.
  • The arrest took place in Florida.
  • The termination decision was made by managers located outside of California.

The court reaffirmed that an employer’s corporate headquarters in California is not enough on its own to extend California employment protections to out-of-state remote workers.

Key Takeaways for Employers

Saberin was ultimately a victory for the employer, but the decision may be equally notable for what it leaves open. The Court of Appeal did not reject the possibility that Labor Code section 432.7 could apply to an out-of-state remote employee. Rather, it concluded that the necessary California connections were missing in this case. Employers should therefore focus not only on where their employees work, but also on where critical employment decisions are made.

 

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.

August 4th, 2026|Categories: Compliance Corner for Employment Decisions|Tags: , , , |

State and Federal Court Searches: Removal vs. Remand

The U.S. has a dual court system — state courts and federal courts. State courts are established by state law and have broad jurisdiction, which means they handle many types of cases. Federal courts are established under the U.S. Constitution and have a limited jurisdiction, typically limited to cases involving the Constitution and laws passed by Congress.

In some cases, the parties may disagree about whether the case should be heard in state or federal court. When this occurs, your court searches may locate state cases that have been “removed to federal court” or federal cases that have been “remanded back to state court” – and sometimes both procedures will happen to the same case.

“Removal” is when a defendant takes a case that was filed by the plaintiff in state court and then brings it to federal court. A defendant can remove a case from state court to federal court if the case originally could have been brought in federal court. The plaintiff can challenge the removal to federal court and, if the challenge is successful, the federal court will “remand” the case back to state court.

July 12th, 2022|Categories: Compliance Corner for Employment Decisions|Tags: , |

Company Legal Name v. DBA

Every business has a “legal” or “true name.” When researching a company, it is important to identify its legal name. In the case of a corporation or limited liability company, the legal name is the one on its formation document — e.g., the articles of incorporation or articles of organization.  As an example, Scherzer International’s legal name is Scherzer International Corporation.

If the company does business under another name, it is commonly referred to as a DBA – which stands for “doing business as.” DBAs are also sometimes referred to as an “assumed name,” “fictitious business name,” or “trade name.” State and local laws generally require a company to register a DBA it is using; however, it is important to note that registering and doing business under a DBA name is not the same as forming a business or a business entity.

June 16th, 2022|Categories: Commercial Transactions Due Diligence|Tags: , |

New York Drunk Driving Laws: DWI v. DWAI v. DUI

Almost everyone has heard the terms DWI and DUI, and many think that both are interchangeable. New York law uses a third term – DWAI. None of these terms are interchangeable and New York law does not use the term DUI or driving under the influence.

In New York, there are two main “drunk driving offenses” – DWI and DWAI. DWI stands for “driving while intoxicated,” while DWAI stands for “driving while ability impaired.” A DWI means that the driver is legally intoxicated, with a blood alcohol content of at least 0.08 percent. A DWAI involving alcohol means the driver’s blood alcohol content is between 0.05 and 0.07 percent.

Although the penalties for a New York DWI and DWAI are nearly the same, there is a big difference between them regarding the offense level. A DWI conviction is a criminal offence, while a DWAI conviction is a violation – which in New York is a non-criminal offence.

The practical effect of this distinction is that a DWAI conviction will appear on a New York driving record (usually stated as “driving while impaired”), but the court conviction will not appear on a New York Statewide CHRS report because these reports do not include non-criminal offenses such as violations.

June 6th, 2022|Categories: Compliance Corner for Employment Decisions|Tags: , |

Expungement of Criminal Convictions – California Style

Some states allow a defendant convicted of a crime to apply for a court order limiting public access to the conviction record or to restore rights and remove disabilities caused by the conviction. This type of order is commonly referred to as an expungement; however, the qualifications for obtaining an expungement and the effect of the expungement vary among the states that allow expungements.

California has an expungement procedure set forth in Penal Code 1203.4. If a defendant meets the qualification of Penal Code 1203.4, the court will allow the defendant to withdraw a plea of guilty or no contest, to reenter a plea of not guilty, and to have the case dismissed. The defendant is also relieved from many of the negative consequences of a criminal conviction.

When reviewing California criminal records showing a conviction, it is important to note if there is also a reference to a Penal Code 1203.4 dismissal because this can impact whether the record is reportable in a background check for a California employer. For example, California law does not allow the reporting of criminal records that result in a non-conviction in employment-purpose reports. Even though the record shows a conviction, the Penal Code 1203.4 dismissal effectively means the conviction never happened.

The reference to the code section will typically be found on the case docket, dated a year or so after the conviction date.

January 26th, 2022|Categories: Compliance Corner for Employment Decisions|Tags: , , |

Decoding Criminal Case Dispositions

A “disposition” is the final outcome of a case, regardless of what it is called. Here is a list of typical criminal case dispositions.

Guilty or Conviction: This is the worst possible disposition if you are the defendant. It means that the case was heard and decided against you. With a conviction, the court will impose a sentence that may include jail time, probation, and paying a fine and court fees.

Not Guilty: The case actually proceeds to a trial, where a jury (or a judge in certain types of cases) decides that the evidence against the defendant was insufficient for a conviction. It does not mean the defendant was innocent – just that the case was heard and decided in the defendant’s favor.

Dismissal: A dismissal is entered when the court determines that the case should not move forward for some reason. There are many reasons for dismissals. For instance, there can be procedural errors, a lack of proper jurisdiction over the type of case, or the prosecutor decides to dismiss the charges (see below).

Nolle Prosequi or Nolle Prosse: A Latin phrase meaning “no more prosecution.” This is another way of saying that a case is dismissed by the prosecutor. This approach is often used when a defendant may agree to plead guilty to a lesser offense that guarantees the prosecution a conviction for a related offense, in exchange for the prosecutor “dismissing” the more serious charge.

January 12th, 2022|Categories: Compliance Corner for Employment Decisions|Tags: , , |

Uber settles class-action for $28.5 million for misleading claims about drivers’ background checks

On February 12, 2016, Uber agreed to settle a consolidated class-action filed in the U.S. District Court for the Northern District of California (Philliben v. Uber Technologies, Inc. and Mena v. Uber Technologies, Inc.) by paying $28.5 million to approximately 25 million riders and promising to avoid using certain language in safety-related advertising, as well as the term “safe ride fee.”

In their complaint filed in 2014, the plaintiffs alleged that Uber’s claim of conducting “industry-leading background checks” for which they paid a “safe ride fee” of $1 to $2 on top of each fare, was false and misleading. According to the complaint, Uber does not and has never had an “industry-leading background check process.” To the contrary, the complaint stated that background screening by Uber does not involve fingerprint identification and, therefore, cannot ensure that the information obtained from a background check actually pertains to the driver that submitted the information. By contrast, most taxi regulators in United States require drivers to undergo criminal background screening, using fingerprint identification, and typically employing a technology called “Live Scan.”  Going forward, Uber said it will rename the “safe ride fee” as a “booking fee” which will be used to cover safety and additional future operational costs.

If the judge approves the settlement, members of the class who rode in an Uber vehicle in the United States between January 1, 2013 and January 31, 2016 will be eligible to receive a portion of the settlement.  If that pot is divided evenly among Uber’s 25 million passengers, after attorneys’ fees, each will get around $1.

Read the consolidated class-action complaint here.

February 23rd, 2016|Categories: Compliance Corner for Employment Decisions|Tags: , , |

Sixth Circuit affirms dismissal of EEOC’s suit regarding employment credit checks

Last month, the 6th Circuit affirmed a lower court order granting summary judgment in favor of educational institution Kaplan  (6th Cir. April. 9, 2014;  No. 13-3408:   EEOC v. Kaplan Higher Education Corp.) where the EEOC charged that Kaplan’s use of credit checks causes it to screen out more African-American applicants than white, creating a disparate impact in violation of Title VII of the Civil Rights Act. In granting summary judgment to Kaplan, the district court stated that “proof of disparate impact is usually statistical proof in the form of expert testimony, and here the EEOC relied solely on statistical data compiled by Kevin Murphy, a PhD in industrial and organizational psychology.” The court excluded Murphy’s testimony on grounds that it was unreliable, as the EEOC presented “no evidence” that Murphy’s methodology satisfied any of the factors that courts typically consider in determining reliability under Federal Rule of Evidence 702; and, as Murphy himself admitted, his sample was not representative of Kaplan’s applicant pool as a whole. The EEOC argued that the district court “erred” when it excluded Murphy’s testimony.

This case was decided on narrow grounds, based on its particular facts and circumstances. Accordingly, employers still should review their screening policies to ensure that credit and (criminal history) checks are consistent with Title VII as interpreted by the EEOC. Additionally, ten states (California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont and Washington) and several municipalities already have legislation that limits the use of credit reports for employment purposes

May 14th, 2014|Categories: Compliance Corner for Employment Decisions|Tags: , |
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