Drug Testing and Background Checks
A criminal background search can clear away any suspicion with a quick and simple peek into a person’s past. At the same time, employee drug testing has gained significant importance in companies as it helps identify employee drug abuse problems and promotes a healthy environment. Therefore, background information used in hiring decisions must, plainly and clearly, be relevant to the job tasks.
Recent guidance from the EEOC and the Federal Trade Commission, agencies with jurisdiction over background check compliance, clearly states that a policy that excludes everyone with a criminal record, for instance, from employment that is not “job-related and consistent with business necessity” is unlawful (unless it is required by federal law).
A conviction must be directly related to the job in question to be considered relevant in an employment decision. For example, a DUI conviction may be suitable for someone who drives a van as part of his job, but NOT for someone who is a custodian and not required to operate. Therefore, a candidate cannot be rejected based on such a conviction. Further, an arrest record alone may not be used to make hiring decisions. An arrest record does not establish that a person engaged in criminal conduct. However, an arrest may trigger an inquiry into the behavior. Therefore, underlying the arrest justifies an adverse employment action.
As an employer, you must prove a decision not to hire or promote someone based on his or her background check results is indeed job-related and consistent with business necessity. For a criminal conviction, the employer can prove this if it: (1) considers at least the nature of the crime, the time since the criminal conduct occurred, and the nature of the job in question, and (2) gives an individual who may be excluded an opportunity to show why he or she should not be excluded.
Except in rare circumstances, disregard any information revealed about applicants or employee’s genetic information, which includes family medical history. Don’t ask medical questions unless you have objective evidence that he or she cannot do the job or poses a safety risk because of the medical condition.
DRUG TESTING FOR EMPLOYERS
Employees can be requested to go to a certified lab, and the results are typically available within a day.
SAFETY IN DRUG TESTING
Employee drug testing increases safety on the job and maintains a safe and secure environment. Pre-employment drug testing can prevent addicted persons from joining the organization and spoil the working environment. In addition, random employee drug testing prevents existing employees from abusing drugs before entering the workplace.
A drug-free environment in organizations promotes positivity and integrity, discipline and professionalism. Removing addicted employees ensures that there will be more minor workplace conflicts and unscrupulous behavior at the workplace. Firing addicted employees will also show other employees that the company has a zero-tolerance policy.
WHAT ARE THE DIFFERENT TYPES OF DRUG TESTS?
• Pre-employment drug tests – Conducted on job applicants to ensure drug abusers do not join the organization.
• Post-accident drug tests – Conducted on employees involved in serious accidents or incidents on the job to determine if substance abuse was a contributing factor.
• Random drug tests – Conducted on employees randomly to deter drug abuse among employees; one or two employees are picked up randomly to take tests.
• Reasonable suspicion tests – Conducted on employees after observing patterns of possible drug use and symptoms of being under the influence of illicit drugs.
• Treatment follow-up drug tests – Conducted on employees who returned to work after participating in a drug rehabilitation program to ensure they abstain from substance abuse.
NON-DISCRIMINATORY PRACTICES IN DRUG TESTING AND BACKGROUND CHECKS
Discrimination based on race, color, national origin, sex, religion, disability, genetic information (including family medical history), and age (40 or older) is prohibited. Discrimination related to background checks can take different forms.
Treating job applicants with identical criminal records differently because of their race, color, religion, sex, national origin, or another protected characteristic is “disparate treatment discrimination.” For example, asking only people of a certain race about their financial histories or criminal records is evidence of discrimination.
Employers should also ensure that their policies do not significantly disadvantage people of a particular race, national origin, or other protected characteristic. This is known as “disparate impact discrimination.” For example, employers may not enforce a policy that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race.
Be prepared to make exceptions for problems revealed during a background check caused by a disability. For example, suppose you are inclined not to hire a person because of a problem caused by a disability. In that case, you should allow the person to demonstrate his or her ability to do the job − despite the negative background information − unless doing so would cause significant financial or operational difficulty to the company.
While laws prohibiting employment discrimination technically apply to private employers with 15 or more employees, it is recommended that companies of all sizes abide by them.
BACKGROUND CHECK PROCESS
Before getting background reports, employers must have written permission from job applicants and employees. This permission must be in writing and a stand-alone document, not part of another document, such as an employment application. If you want the authorization to get consumer reports throughout the person’s employment, make sure the documents state this clearly. Also, include a description of the nature and scope of the background investigation.
Before you reject a job applicant or employee based on results from a background check, you must provide all the following:
- a copy of Summary of Your Rights Under the Fair Credit Reporting Act ;
- a copy of the consumer report you relied on to make your decision, including the name, address, and phone number of the company that sold the piece;
- notice that your company made the hiring decision based on specific information in the report;
- notice that he or she has a right to dispute the accuracy or completeness of the report;
- Notice that he or she can get an additional free report from the reporting company upon request within 60 days.
RETENTION AND DISPOSAL OF CONSUMER REPORTS
Background check results and all other hiring records (regardless of whether the applicant was hired or not) must be retained for one year after the documents were made or after a personnel action was taken, whichever comes later (record retention requirements may be more extended in certain circumstances, such as for educational institutions and federal contractors). If the applicant or employee files a charge of discrimination, you must maintain the records until the case is concluded.
After the retention period has lapsed, you must securely dispose of the background check results report and any information you gathered. That can include burning, pulverizing, or shredding paper documents and disposing of electronic information so that it can’t be read or reconstructed.
In addition to adherence to these federal guidelines related to the use of consumer reports in employment decisions, you should also review the laws of your state and municipality regarding background reports or information. Currently, ten states limit employers’ use of credit information in employment decisions, and several states restrict the use of criminal records.
Q&A – BACKGROUND CHECKS
What If There Is a Mistake in the Credit History Portion of a Background Check?
The applicant has specific rights outlined in the summary of righteousness, which must be provided to the background check subject. This is specified in the Fair Credit Reporting Act (FCRA). Therefore, the applicant, employer, or whoever is requesting the background check should inquire and investigate it.
Do I Need a “Release” Form from the Subject of the Background Check?
You should obtain a release from any person for a background check. Keep a copy of a signed release form for your files. Also, be sure the background check subject receives a “Summary of Rights” required by the Fair Credit Reporting Act with a copy of the signed release form.