A flexible workplace allows employers to draw from a bigger pool, ranging from remote and hybrid workers to contractors. Even though a flexible workplace has multiple benefits, employers have potential pitfalls. Most companies have not adapted their employment screening programs when hiring remote or hybrid workers, creating problems.

Brandon Phillips, Founder and Chief Resource Officer at Global HR Research, and Todd Higey, the company's General Counsel, discussed this in our recent webinar, "How Your Employment Screening Program Needs to Support a Hybrid Workforce."

The 2019 Hiring Model vs. 2022

On the surface, your hiring process might look the same as it always has, but the devil is always in the details. So, we've done some research to identify changes happening for employers across the county.

Some Fast Facts, According to our Findings

  • According to the US Census Bureau, before the COVID-19 pandemic, only 6% of employees worked primarily from home rather than in an employer's office. Close to 75% of employees had never worked from home
  • Now, an estimated 45% of full-time employees have the flexibility to work remotely
  • Over 50% believe remote hiring will continue to increase
  • 32% of businesses are replacing full-time employees with contingent workers as a cost-saving measure
  • Nearly 60% of respondents to a recent GHRR/HRO Today survey stated that there is no difference in the way they screen for an on-site position vs. a remote one.

The Challenge in Employing a Hybrid Workforce

When adapting to a hybrid workforce, employers may not be thinking about state employment laws that may impose new obligations.

For example, employers who have traditionally only operated in states that are not marijuana-friendly have probably spent little time considering other state laws that may protect employees that use marijuana for medical or recreational purposes. However, an Alabama employer with a traditional zero-tolerance policy for marijuana use may have to re-think its approach if it hires a remote worker from Montana, which explicitly protects employees' use of marijuana off the clock and away from the employer's premises. Not only that, but it may need to reconsider its entire drug testing program. The majority of US states now have some unique nuance to their policies – either medical or recreational use. Hence, this places a significant burden on employers to have to consider the state in which they’re headquartered along with the state in which they are hiring a remote employee.

The Hybrid Workforce's Effects on Employee Background Screening

In addition to drug-testing policies, employers should consider whether their criminal history background screening program designed initially for local workers will meet the needs of a remote or hybrid workforce. Some of the questions employers may want to ask themselves include:

  • Will they have the same employment disqualifications for local and remote workers?
  • Are some disqualifications for local workers even relevant for remote workers?
  • Are there new disqualifications they should consider that wouldn't have been needed for a purely local workforce?

WFH: An acronym short for "work from home."

Let's consider a few specific hypotheticals –

1. The employer disqualifies local workers convicted of violent crimes. Would this be a relevant disqualification for remote workers?

2. What if the employer disqualifies local workers who have been convicted of crimes involving theft? Should this likewise disqualify remote workers?

When asking these questions, it is essential to remember why it matters whether the current disqualifications are "relevant "to remote employees. This is because the EEOC and state lawmakers have continuously stressed the importance of "job relatedness "– meaning disqualifications based on criminal background screening should be related to the job in question.

Looking at the two scenarios mentioned above, would you show a substantial relationship between either of those crimes and a job for an employee working from home? Employers will want to review EEOC guidelines and state and municipal fair chance hiring laws before making that determination.

The Takeaways

1. Be mindful of the states of residence for remote employees.

2. Review your disqualification criteria.

3. Revisit your drug-testing program.

After working with your legal counsel, employers are encouraged to contact GHRR to discuss how we can help you modify their background screening program to fit the modern workforce.

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