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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: , , , , , , , , , |

New Year, New Rules: Recap of What’s Coming in 2026 in Employment Screening

2026 marks a series of newly enacted laws taking effect across the country. Employers must adapt quickly to ensure compliance and maintain fair hiring practices. Below are the most significant changes taking effect this year.

District of Columbia: Second Chance Law (Effective January 1, 2026)

  • Automatic sealing of decriminalized offenses (such as pre-2015 marijuana convictions) and various older convictions.
  • Petition avenues for sealing additional convictions.
  • Employers are not permitted to access or act on any records sealed under this new law.

Philadelphia: Criminal Record Screening Amendment (Effective January 6, 2026)

  • Look-back periods cut; only felonies within the past 7 years and misdemeanors within the last 4 years are eligible for consideration, while minor offenses (summaries/infractions) are entirely excluded.
  • Requires “pre-adverse action notices” over a ten-day candidate response period, and robust documentation, even extending the 90-day protection against adverse action following protected activity.

New York State: Credit-Check Ban (Effective April 18, 2026)

  • Employers, including staffing firms, cannot request or use any “consumer credit history” for hiring, promotion, compensation, or other employment decisions, unless a statutory exemption applies.
  • This statewide ban aligns with New York City’s Stop Credit Discrimination in Employment Act (SCDEA), extending similar protections across the entire state.
  • The expansive definition of “credit history” covers credit reports, scores, credit accounts, and payment histories and, similar to the SCDEA, it likely prohibits searches of public records for bankruptcies, judgments, and tax liens unless an exemption applies.

Washington State: Fair Chance Enhancements (Effective July 1, 2026)

  • Employers with 15+ employees must wait until “after extending a conditional job offer” to inquire about criminal history; this rule extends to all employers by January 1, 2027.
  • Arrests, juvenile convictions, and non-conviction adult records are off-limits in hiring decisions. Only relevant adult convictions may be considered and only with a documented legitimate business justification, accompanied by a written notice and at least two business days for a candidate’s response.

Virginia: Clean Slate Law (Effective July 1, 2026)

  • Numerous misdemeanors and low-level felonies will be “automatically sealed” disappearing from standard background checks.
  • Employers and screening vendors are expressly barred from reporting or considering such sealed convictions in hiring decisions

San Francisco: Updated Fair Chance Poster

The City and County of San Francisco issued a revised version of its Fair Chance Ordinance (FCO) notice poster, replacing the prior version released in 2023. The updates include changes to official contact information and a Vietnamese-language translation, in addition to English, Spanish, Chinese, and Tagalog. The updated poster can be found here.

 

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

Amendment to San Francisco’s Fair Chance Ordinance goes into effect October 1, 2018

In April 2018, the San Francisco Board of Supervisors passed an amendment to the Fair Chance Ordinance (FCO), which takes effect on October 1, 2018. The full text of the amendment can be found here.

The FCO notice/poster has also been updated and can be accessed here. Employers must provide this notice to applicants and employees prior to conducting a criminal background check, and post it in English, Spanish, Chinese, and any other language is spoken by at least 5% of the employees at the workplace or job site.

September 28th, 2018|Categories: Compliance Corner for Employment Decisions|Tags: , , |

Reminder: San Francisco’s tough ordinance that restricts asking about and using criminal records in employment and housing decisions starts August 13, 2014

 

Effective August 13, 2014, the Fair Chance Ordinance (the “FCO”) (see also the FCO FAQs) requires covered employers, contractors, and housing providers to review an individual’s qualifications before inquiring about his/her criminal history and follow strict rules for using the information.

The FCO applies to private employers that are located or doing business in the city and county of San Francisco, and employ 20 or more persons worldwide. This 20-person threshold includes owner(s), management, and supervisory personnel. The FCO covers positions (including contractor and other status) located within San Francisco, regardless of where the employer is located, as long as the position is “in whole, or in substantial part, within the city.” San Francisco’s Office of Labor Standards Enforcement (the “OLSE”) interprets “in substantial part” to mean an average of eight hours of work performed per week in San Francisco.

Along with banning inquiries about a criminal history or pending charges on the job application or during the first live interview, the FCO prohibits asking about six categories of criminal record information altogether, and mandates significant measures for individualized assessment, including considering only “directly-related convictions that have a direct and specific negative bearing on the

[applicant’s] ability to perform the duties or responsibilities necessarily related to the position,” the time elapsed since the conviction, evidence of inaccuracy, evidence of rehabilitation and/or other mitigating factors.

An aspect of the ordinance that is especially noteworthy is that employers are prohibited from inquiring about or considering convictions that are more than seven years old, with “the date of conviction being the date of sentencing.” Under California law, there already is a seven-year limitation on such records, but the look-back period starts from the date that a person is released from custody. Also of note is that before taking any adverse action based on a criminal record, the ordinance requires that the employer wait seven days (from the date of the potential adverse action notice) before taking such action. If during the seven-day waiting period the individual gives the employer notice, orally or in writing, of evidence of an inaccuracy, rehabilitation, or any other mitigating factor, the employer must delay the adverse action for a “reasonable” time to reconsider the action.

Employers must also ensure that criminal background inquiries later in the process comply with the notice guidelines published by the OLSE, as well as with the already existing background check disclosure/authorization requirements under California’s ICRAA and the FCRA. Highlighted below are the ordinance’s more significant notice requirements:

  • Covered employers must post, in a conspicuous place at every workplace, including a temporary site, or other location in San Francisco under the employer’s control where applicants or employees visit, a notice of rights provided by the OLSE. The notice must be posted in English, Spanish, Chinese, Tagalog and any other language spoken by 5% or more of the employees in the workplace, job site, or other location. (Translations of the notice in Chinese, Spanish, and Tagalog are available on the OLSE website.)
  • Employers must state in all job solicitations or advertisements that are reasonably likely to reach potential applicants seeking employment in San Francisco that the employer will consider qualified individuals with a criminal history.
  • Employers mustsendthe notice toeachlaborunionorrepresentative withwhomtheemployerhasacollectivebargainingagreementorotheragreementthatisapplicabletoemployeesinSanFrancisco.
  • Prior to any criminal history inquiry, including from procuring or conducting a background check, an employer must provide this notice to an applicant or employee when he/she is given the required FCRA/ICRAA disclosure and authorization form to sign.

August 8th, 2014|Categories: Compliance Corner for Employment Decisions|Tags: , , , |

San Francisco enacts ordinance for using criminal records in employment decisions

Effective August 13, 2014, under San Francisco’s Fair Chance Ordinance, companies with 20 or more employees are prohibited from inquiring about an applicant’s criminal history on the employment application or during the first live interview. Along with banning the box, the ordinance imposes several additional restrictions and mandates certain considerations for individualized assessment. San Francisco employers must also ensure that their notice and consent forms for criminal background inquiries later in the process comply with the guidelines that will be published by San Francisco’s Office of Labor Standards Enforcement (OLSE) as well as with the already existing background check disclosure/authorization requirements under California’s ICRAA and the FCRA.

San Francisco is the ninth jurisdiction with legislation that affects private employers. The remaining eight are the states of Hawaii, Massachusetts, Minnesota, Rhode Island, and the cities of Buffalo, NY, Newark, NJ, Philadelphia, PA, and Seattle, WA. Multi-state employers should consider whether their particular circumstances warrant adopting individualized employment applications for jurisdictions with ban-the-box laws, or whether to use a nationwide standard form. Employers who opt for a standard electronic application for all locations need to include a clear and unambiguous disclaimer for applicants in each applicable ban-the-box jurisdiction. It is uncertain whether such disclaimers are sufficient for paper applications of multi-state employers in at least one ban-the-box jurisdiction (Minnesota) or if the box must be removed altogether.

For more information on ban-the-box legislation, see the recently published briefing paper by the National Employment Law Project titled Statewide Ban the Box – Reducing Unfair Barriers to Employment of People with Criminal Records.

Note: Effective August 13, 2014, with our California employment-purpose disclosure/ authorization form, we will be including a supplemental disclosure/authorization notice as prescribed by the OLSE, to use by San Francisco employers. 

March 28th, 2014|Categories: Compliance Corner for Employment Decisions|Tags: , , , |
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