The Critical Role of Consented Pre-Employment Screening in the US: Key Compliance Updates for 2025 and 2026

By Michael Tapling

In today’s dynamic legal landscape, employers in the United States must go beyond basic background checks. They must understand the legal, ethical, and practical importance of consented pre-employment screening, especially as new legislation reshapes what information is accessible and how it can be used.

With pivotal laws such as Clean Slate policies, Fair Chance Hiring, and the upcoming Second Chance Amendment Act, 2025 and 2026 mark a significant shift toward fairer, more inclusive hiring—but also increased complexity for compliance.

Let’s explore why consented screening remains vital and what changes employers need to prepare for.

Why Consented Pre-Employment Screening Still Matters

Consented screening is the foundation of a compliant and responsible hiring process. Under the Fair Credit Reporting Act (FCRA), employers must:

• Obtain clear written consent from applicants before running background checks.
• Provide proper disclosure about the nature of the background report.
• Follow adverse action procedures if any negative findings will impact a hiring decision.

This process protects not just candidates’ rights, but also the business itself. Pre-employment screening helps employers:

• Identify fraud risks, false credentials, or criminal behavior that may pose workplace threats.
• Ensure hiring aligns with regulatory requirements (especially in healthcare, finance, and education).
• Maintain organizational integrity and protect shareholders, employees, and clients.

Whether you're a Fortune 500 company or a growing startup, pre-employment screening—with proper consent—should be a non-negotiable part of your hiring strategy.

Compliance Spotlight: Key Legal Updates in 2025

Clean Slate Laws

Clean Slate laws are designed to reduce the long-term consequences of a criminal record by automating the sealing or expungement of certain offenses after a period of time without reoffending.

• Michigan pioneered the first fully automated Clean Slate law in 2021.
• In 2025, several states, including Minnesota, Virginia, and Colorado, expanded or enacted new Clean Slate legislation.
• These laws mean that some criminal convictions will no longer be visible on background checks—even if they once were.

Employer Risk: If your screening policy or provider still reports sealed offenses, you may be in violation of state law—and subject to fines or litigation.

What to Do:

• Work with FCRA-compliant background check vendors who monitor state-level sealing laws.
• Review and revise hiring policies to ensure you’re not evaluating sealed or expunged records.
• Train HR teams on which records are legally permissible to consider in each jurisdiction.

Fair Chance Hiring (Ban the Box)

Fair Chance Hiring, or Ban the Box, is a nationwide movement that encourages employers to consider an applicant’s qualifications before reviewing criminal history.

• These laws prohibit employers from asking about convictions on job applications.
• Some laws also delay background checks until after a conditional offer is made.
• As of 2025, more than 35 states and 150+ local jurisdictions have adopted Fair Chance practices.

Non-compliance can result in state penalties, civil lawsuits, and damage to your employer brand.

What to Do:

• Remove questions related to criminal history from job applications.
• Time your background checks after making a conditional offer of employment.
• Implement individualized assessments to ensure fairness and reduce bias.

Looking Ahead to 2026: The Second Chance Amendment Act

In January 2026, Washington D.C. will implement the Second Chance Amendment Act, which mandates automatic expungement of marijuana possession and other decriminalized offenses.

• This forward-thinking legislation is part of a broader national trend to reduce stigma and support reintegration into society.
• Offenses that are now legal or decriminalized will no longer appear on background checks.

Key Consideration: While this law is localized to D.C., other jurisdictions are likely to follow with similar reforms in 2026 and beyond.

What to Do Now:

• Monitor upcoming legislation across all jurisdictions where you hire.
• Start discussions with your background screening provider about expungement filtering.
• Update internal compliance checklists for 2026 hiring cycles.

The Business Case for Smart, Consented Screening

While compliance is crucial, the benefits of pre-employment screening go beyond legal protection. Here’s why it remains an essential best practice:

• Risk Mitigation: Identifies red flags before they affect your workplace.
• Safety & Security: Protects employees, customers, and assets.
• Regulatory Compliance: Keeps your organization in line with federal and state laws.
• Informed Hiring Decisions: Confirms identity, education, and employment history.
• Reputation Management: Demonstrates integrity to clients, investors, and partners.

Your Next Steps for 2025 and 2026 Compliance

To navigate the changing legal landscape confidently:

1. Audit your hiring policies and background check processes for compliance with state and federal law.
2. Ensure all screening is consent-based, with FCRA-compliant disclosures and authorization forms.
3. Train HR professionals and hiring managers on Clean Slate laws, Ban the Box, and expungement regulations.
4. Partner with a screening provider who stays current on legal updates and adjusts reports accordingly.
5. Document your compliance procedures for each candidate screened, including consent and adverse action steps.

Final Thoughts

The future of hiring is about balance—between protecting your organization and offering candidates a fair opportunity. With laws like Clean Slate, Fair Chance Hiring, and the Second Chance Amendment Act, employers must adapt their background screening processes to reflect legal requirements, social responsibility, and evolving public policy.

Consented pre-employment screening remains one of the most important safeguards your organization can implement. Done right, it doesn’t just help you avoid risk—it helps you build a stronger, more inclusive, and compliant workforce.