When did your organization review its background check policy? Not just change the date on the footer—actually review and revise it based on current laws and regulations.
If it’s been more than a couple of years, you’ve probably lost ground. And that means you’re at risk for compliance issues as well as losing good candidates because you’re out of touch with modern practices.
What’s Changed (And Why It Matters)
Ban-the-Box
Ban-the-box laws keep spreading. As of early 2026, 37 states and more than 150 cities have their own versions of these rules. And the details are all over the place, which makes life complicated if you’re hiring in more than one state. In some areas, you can’t ask about criminal history on the first application. In others, you’re not allowed to consider certain convictions at all.
The bottom line? There’s no uniform standard. Which means you need to know the rules for every state where you hire. (And the rise of remote work means this could include more states than you think.)
Focus
The EEOC’s guidance on background checks hasn’t changed since 2012, but its focus definitely has. These days, they look much more closely at your policies, especially if they might unfairly impact certain groups. For example, if you’re still using a blanket policy that automatically disqualifies anyone with a criminal record, you’re not compliant. The name of the game in 2026 is individualized assessments. That means looking at what actually happened, how long ago the incident was, and whether it really matters for the job you’re hiring for. You also need to give candidates a chance to tell their side of the story and explain their efforts at rehabilitation.
Yes, it takes more time. But that’s the standard now. Plus, it’s more fair.
And More
Here are two more examples. Credit checks are now off-limits in many states unless the job really requires financial responsibility. Salary history bans are popping up everywhere. And with more states legalizing recreational cannabis, a lot of organizations are having to rethink their drug testing policies, especially for jobs where safety isn’t on the line.
The changes are significant, and your policies need to keep up.
What HR Leaders Need to Do
Start by auditing your current policy. Ask yourself a few questions.
- When was it last updated?
- Does it account for state-specific requirements?
- Have your hiring managers been trained on how to conduct individualized assessments?
Your answers will give you a place to start.
Next, align your background checks with actual job requirements. Stop running identical checks for every role. A finance position might warrant a credit check. A warehouse role probably doesn’t. Document your reasoning for each type of check. You’ll need to demonstrate job-relatedness and business necessity if you’re ever challenged.
Add individualized assessments into your process. When something appears on a background check, don’t automatically disqualify the candidate. Evaluate the specifics: What was the nature of the offense? How long ago did it occur? Does it have any bearing on the responsibilities of this particular job? Give the candidate a chance to explain.
Consult your legal team. Loop them in early to make sure you’re on the right track.
Train your hiring managers. They need to understand what questions they can and can’t ask during initial interviews, particularly in ban-the-box jurisdictions. They need to know the difference between blanket policies and individualized assessments. Compliance doesn’t work if the people conducting interviews don’t know the rules.
Audit, align, assess, train, repeat. Now you’re on the right track.
Moving Forward
Nobody likes policy updates. But the regulatory landscape has shifted enough that policies written even three years ago may no longer adequately protect your organization.
The goals are straightforward: create policies that protect your organization and treat candidates fairly. 2026 is all about getting that balance right.