What You Need to Know About Employee Drug Screening

What You Need to Know About Employee Drug Screening

In today’s business world, drug screening is a vital part of the employment screening process. Drug screening is something that may be legally required for certain jobs such as truck drivers or emergency workers, while may be up to the employer for other positions. Drug testing is really about ensuring a safe and productive work environment and is a best practice as it relates to risk mitigation

What is Drug Screening?

Drug screening is all tests administered to an employee or potential employee for the purpose of detecting the presence or prior use of illegal or illicit substances. This includes metabolites, the inactive metabolized forms of drugs. Such tests are often mandated for things like random employee testing, job applications, organized sports participation, police investigations, and more. The tests can vary in what they are looking for and how they are carried out.

Generally, drug tests are performed to detect the presence of the following substances:

  • Steroids
  • Phencyclidine
  • Barbiturates
  • Amphetamines, e.g. methamphetamines
  • Opioids
  • Cocaine
  • Marijuana

There are many different types of drug tests. This includes but is not limited to:

  • Hair tests
  • Blood tests
  • Saliva samples
  • Sweat samples
  • Urine samples

Why Bother with Drug Screening?

As said before, some positions may legally require drug screening. In these scenarios, the employer does not have a choice in whether they want to conduct drug screening. But for those non-mandatory situations when considering whether your organization should conduct pre-employment drug screening consider these factors:

Post-Accident Tests

If there was an accident at the workplace, drug screening can be used to determine whether drugs or alcohol were a factor in it and thus help reduce the employer’s liability. This also can let the employer know if there is a much bigger problem in the organization.

For Cause and Reasonable Suspicious Tests

If there are signs that an employee is unfit for the job and there is enough reason to suspect that the problems may be drug-related, employers can call for a drug test to determine whether this is the case for the safety of the workplace and the other employees.

Pre-Employment Tests

Employers can choose to administer drug tests prior to employing an individual if they so choose. In some jurisdictions or for certain job sectors, pre-employment tests may be mandatory under the law. Productivity, honesty, reliability, and safety can all be affected by those who use narcotics, even off the clock.

Post Treatment Tests

Employees returning to work after a rehab program may be required to undergo drug screening to judge their state of health.

Are Drug Tests Accurate?

Considering the judgments that might be made following the results of a drug test, the accuracy of those tests is particularly important. However, the accuracy can be affected by many factors.

  • Time between collecting the sample and testing it
  • Hair treatment products and similar things that can affect samples
  • Tampering with samples by the employee being tested
  • Hydration dilutes substance levels in urine

Most of all, the accuracy of drug tests is affected interpretation. A professional toxicologist sometimes known as a Medical Review Officer or MRO is required to accurately interpret positive drug test samples. This means it is vital to find a drug testing lab with a qualified professional to analyze the samples of any drug tests conducted at your place of business.

Generally, most drug tests requests can be ordered online or through text messages to the applicant. They can be conducted for an employee almost anywhere in the U.S. Results can be available in about 72 hours unless there is a positive result which needs to be reviewed by the MRO. If you are considering or have a drug screening program already, Nationwide Screening would be happy to help you set up a new program or review your existing program.

Meta Description: Drug screening is not always mandatory, but if you want to use it at your workplace, you need to know this info.

Education Verification for Employment Screening

Why verify education?

Understanding how education verification works and what it can do for your company will make your organization more effective, productive and mitigate risk. Resume fraud is quite common; between 25 and 50% of all job applicants lie on their resumes, according to several sources. Even more resumes are misleading and embellish job descriptions, duties or alter titles.

Fraudulent resumes present several legal challenges to Human Resources departments. HR departments are usually responsible for verifying that employees are qualified for a job. It is a critical piece of the hiring process helping to reduce the risk of a negligent hiring claim. Imagine hiring an engineer who does not have the proper education and training to design a bridge!

Verifying a prospect’s education assists is part of the background screening process. Although the procedure can take additional time to finish, it is mission critical in some cases that in addition to the formal degree verification that professional accreditation and licensure, has been verified and remains up to date.

If your company desires to build a successful team, then confirmation of all degrees, licensed, and/or licensure claims from the prospect should be part of the background check process. Taking these steps helps to make sure your new team members have the skills and knowledge needed to meet your companies strategic and tactical goals. Most important is how do you meet your companies needs if your workforce is not qualified to do the job. Education verification is a commonsense piece of the hiring process.

 How does an education verification work?

 Although an education verification can use a lot of different methods, the general procedure includes the confirmation of a prospect’s academic, certification, and/or licensure-related claims. Education verification processes can be performed for any level of education including high school, and GED equivalency exams, colleges, universities, and professional accreditations or licenses.

 These background checks can include discovering info not only on whether someone finished and attended from the schools they claim, but what grades they received within specific topics of research study that may be important within a particular trade or field. Most of the time, what education verification is referring to is education and degrees from universities and colleges.

 In almost all cases the college/university will require a signed release from the candidate before releasing records or an applicant’s transcript. The verification can take up to 30 days in some cases if the school is no longer in business or the records are older than 10 years. In most cases however the verification cab ne completed within 48 to 72 hours.

Legal requirements of education verification

When verifying a prospective hire’s previous education, businesses require candidates to supply their name, date of birth, and Social Security Number. Whether you are utilizing a background check service or not, it is best to offer the prospect what the Fair Credit Reporting Act (FCRA) requires and permits of businesses. Utilize a signed background authorization on a separate form from the application. Make sure the applicant is given their summary of rights under the FCRA or any other State or Local laws.

EEOC requirements of verifying education

The Equal Employment Opportunity Commission (EEOC) requires that there be no discrimination, intended or otherwise, during the review process. Employers should be consistent in how their program of conducting background checks is executed. All candidates should receive the same type of review, including methods used, turnaround time, etc. Note that local laws could also come into play based on both the locations the employer is hiring and where the candidate is located.

Summary

To ensure that your organization is conducting legally compliant education verifications and to alleviate some of the workload on your HR department consider using a qualified consumer reporting agency. For instance, Employers in Ohio can be sued for negligent hiring, retention, or supervision claims, even without the employee(s) in question being named in the suit and regardless of whether criminal charges were filed against anyone for the underlying wrongful conduct. Examples like these are a good reminder that you have a legal duty to your workforce, customers and the public to exercise reasonable caution and care when it comes to hiring, training, supervising, and retaining employees.

Top 10 Reasons Why Employers Should Screen Their Applicants

There is wide a range of reasons that prospects falsify information and why you should screen your applicants. These can be as simple as attempting to hide periods of unemployment or more serious so as to conceal drug abuse or a criminal history. For some, it is simply to get a leg up in today’s economy and the competitive job market.

1. Resume Fraud. Around half of all candidates embellish or outright lie on their resumes. If you can identify which applicants have misstated their credentials, experience, and abilities you can remove them from the beginning without wasting any more time in the process.

2. Limited Access to Information. Companies are reluctant to expose themselves to liability and are extremely hesitant to respond to a referral request. But, at the same time, former employers frequently hold the key to the most relevant insight about the prospect. Many employers also outsource their employment verifications to a third-party clearinghouse. Nationwide Screening Services has the expertise to navigate these employment reference challenges.

3. Expense. Numerous employers use an outside firm to perform background checks on candidates for employment and for good reason. Background checks can be complicated and time-consuming to carry out in-house. Employing a qualified employment screening firm conserves time and money– especially when small companies cannot afford to commit the necessary resources to perform these checks internal.

4. Compliance Issues. The Fair Credit Reporting Act (“FCRA”) sets standards for work screening. There is a list of compliance requirements set by the FCRA, consisting of different disclosures a company must make before, throughout, and after the background check has been performed. The FCRA also brings considerable charges for non-compliance.

5. Bad Apples Are Expensive. Hiring is one of the most important decisions an organization will make. Failure to carefully screen and pick applicants can result in employees who are (1) not certified to perform the work hired to do; (2) whose work routines are not in line with the organization’s; (3) whose mindsets and characters create disruption in the workplace (4) hired under false expectations which later develops into bad morale and low efficiency. The U.S. Department of Labor approximates that the average expense of a hiring and subsequently terminating a bad hire can equate to 30% of the staff member’s potential earnings throughout the very first year of work. However, some sources say that estimate is low and is closer to 100% for non-management workers and 150% to 200% for management.

6. Employee Theft. The U.S. Chamber of Commerce approximates that theft by workers costs American companies $20 to $40 billion each year. U.S. customers absorb this cost at the annual rate of $400 per working adult. An employee is 15 times most likely than a non-employee to steal from a company.

7. Claims of Negligent Hiring and Retention. Companies can be at risk and held liable if they fail to exercise reasonable care in the employment-selection procedure. “Reasonable care” is dependent on not simply whether the employer knew about the prospect’s predispositions but whether the company should have known. In other words, failure to screen candidates and to utilize correct care in working with them can result in legal liability.

8. Workplace Violence. Some two million American employees are victims of office violence each year. While not every occurrence of violence could be prevented with applicant screening pre-employment checks can mitigate the risk by screening out candidates with a history of violence.

9. Copyright Concerns. Intellectual property theft is a very genuine concern, costing American employers anywhere from $250 Billion to 600 Billion annually. As the workplace becomes more technology-based and employees end up being more technology-savvy, the risk of stolen trade secrets and other exclusive information will continue to escalate.

10. EEOC Violations. Of course, this is a common concern for many employers– that the person they work with will later become disenchanted with the workplace and file a suit for a perceived or real grievance. And there is an excellent reason to fret. Just ask Wal-Mart, which has been hit with several multi-million-dollar claims brought by workers over the past couple of years.

April Newsletter 2021

Message from the Editor: 

Welcome to another edition of ‘Inside Background Screening’ our new newsletter. Our goal is to bring to you cutting edge news and information about what is happening in the background screening world to help keep you informed and to position you to make the best possible hiring decisions. 

We hope you enjoy ‘Inside Background Screening’ and that you will share your interest and thoughts with us. 

Lorenzo Pugliano 
CEO 
Lpugliano@nsshire.com 

EMPLOYMENT SCREENING

Does Your Company Give Employees and Applicants a “Fair Chance”? Navigating Expanding Criminal Background Inquiry Bans Across the Country 

Multiple locations have enacted various “ban-the-box” or “fair chance” laws that prohibit or limit employers’ ability to ask about or consider a person’s criminal history as part of the job application process. The Fair Chance Act in New York City is one such act, which recently was radically expanded to make it ever harder for New York City employers to rescind a promotion or terminate an employee who was convicted of a crime during employment without needing to follow a multi-step process. Philadelphia also made similar changes and Maryland and Colorado have enacted relatively new ban-the-box laws. 

Read more 

Waters, Trone Introduce Historic Legislation to ‘Ban the Box’ on Employment Applications Nationwide Ahead of House Vote on Police Reform 

The Workforce Justice Act, which would encourage states to ‘ban the box’ on employment applications nationwide and give justice-impacted individuals a greater chance of gaining employment, has been introduced in the 116th Congress in an effort to reform a portion of the criminal justice system that affects more than 70 million people with an arrest or conviction record. According to Congressman David Trone (MD-06), justice-impacted individuals are primarily people of color and his own company saw a higher retention rate and gained more dependable employees when it banned the box and hired 500 returning citizens. 

Read more 

LEGAL ISSUES

Divided Second Circuit Rejects Race Discrimination Claim Tied to Criminal Convictions Client Alerts 

The full Second Circuit Court of Appeals recently denied an en banc petition to review the dismissal of a class action that involved a disparate impact claim. An earlier panel of the Second Circuit concluded that the claim in Mandala v. NTT Data, Inc., relied on nationwide criminal conviction statistics, not the conviction rates among the pool of applicants qualified for the particular jobs offered by the employer. The full Second Circuit affirmed the decision. 

Read more 

So Much for “9 to 5”: Employers’ Consideration of Employees’ and Applicants’ Conduct Outside of Work 

In North Carolina, a private employer is free to avoid or end relationships with applicants and employees whose conduct, regardless of where or when it occurred, is objectionable to the employer. The rule has many important exceptions employers must consider that protect applicants and employees from unlawful treatment based on what they have done or said outside of work under federal law. Employers should aim to be consistent, document the decisions carefully and promptly, and implement and act in accordance with a clear, reasonable and lawful personnel policy that addresses non-workplace conduct. 

Read more 

FedEx Sued in New York Over Job Applicant Background Checks 

A lawsuit filed by a job applicant of FedEx Corp. claims the company violated New York’s Fair Chance Act when it checked his criminal history before deciding whether to offer him a job. The company is reviewing the allegations and will de-fend the lawsuit, Franklin v. FedEx Ground Package System, Inc. The applicant is asking the court to allow him to represent a class of job applicants with criminal records who were turned down by FedEx in New York. 

Read more 

Illinois Tightens Restrictions on Employer Use of Criminal Background Checks 

Senate Bill 1480 has been signed into law in Illinois, adding a new Section 103.1 to the Illinois Human Rights Act (IHRA) that severely restricts the ability of employers to rely on conviction records in making employment decisions. Effective immediately, the amendment prohibits use of a conviction record as the basis for an employment decision unless

1. There is a “substantial relationship” between one or more of the candidate’s prior convictions and the job at issue or

2. Employment would involve an “unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” 

Read more 

N.Y. Pols Propose ‘Clean Slate’ Legislation to Seal and Expunge Criminal Record

The proposal of New York’s new “Clean Slate” bill aims to create a two-step process to automatically seal and eventually expunge past convictions and make it easier for those who served time to find work and housing opportunities. Convictions would be automatically sealed one year after sentencing on the individual’s last misdemeanor conviction and three years after sentencing for felonies, as long as someone is off probation and parole, is not facing any pending criminal charges and is not on the sex offender registry. These would then not show up in most background checks for employment and housing and would be inaccessible for police department. They would, however, still be available for courts and prosecution purposes, as well as agencies statutorily mandated to fingerprint people for government-regulated jobs, licensing and clearances.

Read more

DRUG SCREENING

How New Jersey’s Recreational Marijuana Law Significantly Affects Work- place Drug Testing

Three marijuana reform bills were signed into law in February by New Jersey Governor Phil Murphy. The New Jersey Cannabis Regulatory, Enforcement As- sistance, and Marketplace Modernization Act (A21) legalizes and regulates can- nabis use and possession for adults who are 21 and older. The two other laws decriminalize marijuana and hashish possession (A1897) and clarify marijuana and cannabis use and possession penalties for individuals younger than 21 years old (S3454). The recreational marijuana law that voters approved by ballot initiative on Election Day 2020 has several provisions that affect employers, as does the decriminalization of marijuana law.

Read more

U.S. Office of Personal Management Provides Guidance to Federal Agencies on Consideration of Marijuana Use in Hiring Decisions

A memorandum has been issued by the Acting Director of the U.S. Office of Personnel Management (OPM) regarding “Assessing the Suitability/Fitness of Applicants or Appointees on the Basis of Marijuana Use; Maintaining a Drug-Free Workplace.”

Guidance is offered to help federal agencies deal with “increasingly encountering individuals whose knowledge, skills and abilities make them well-qualified for a position, but whose marijuana use may or may not be of concern when considering the suitability or fitness of the individual for the position,” according to Acting Director Kathleen M. McGettigan. The agency must consider several factors when determining whether an applicant is suitable or fit for a particular government agency job. Further, McGettigan said, prior marijuana use is not automatically disqualifying and agencies should exercise care before making a determination of unsuitability for criminal conduct based on marijuana possession.

Read more

Medical Marijuana and the Construction Industry: Effective Drug Testing Policy and Compliance

Mississippians voted last year to legalize medical marijuana, but the tension between federal and state law presents new challenges for contractors, especially those working in multiple states and jurisdictions. The Occupational Safety and Health Act’s general duty clause requires contractors to maintain a safe job site and work environment “free from recognized hazards that are likely to cause death or serious physical harm,” but it can be difficult to determine when an employee may be impaired and a drug test is warranted.

While some states require employee accommodation for medical use, other states that have legalized medical marijuana do not. It is important for businesses to develop a well-defined drug policy to minimize the risk of harm to persons and property and decrease the likelihood that drug testing and disciplinary action arising from marijuana intoxication will create liability for adverse employment decisions. Once developed, a contractor should administer a consistent drug testing program.

Read more

BIOMETRIC ISSUES

Minneapolis Becomes Latest City to Ban Use of Facial Recognition Technology

An ordinance has been passed by the Minneapolis City Council that prohibits the city from buying facial recognition technology or using any data derived from it. It also creates a process for city departments to request additional permitted uses of facial recognition programs and data through an exception process. The ordinance, however, does not include an exception for providing access control and security for employees in workplaces.

Read more

Proceeding with Biometric Caution: Illinois Courts to Decide Critical BIPA Issues

Illinois’ Biometric Information Privacy Act (BIPA) has opened the door for a whole new set of class actions, with employees asserting that employers violate the Act by utilizing timekeeping systems that require employee fingerprints, or other “biometric identifiers” or “biometric information.” Cases continue to increase into 2021 and several are worth keeping an eye on, including McDonald v. Symphony Bronzeville Park LLC (the potential complete defense case), Tims v. Black Horse Carriers, Inc. (the potential limitations defense), and Cothon v. White Castle Systems, Inc. (the potential per-scan defense case). Employers should take appropriate steps to ensure they are meeting BIPA requirements.

Read more

DATA PROTECTION & PRIVACY

Florida Data Privacy Bill

A bill in Florida would create new obligations for covered businesses and greatly expand consumers’ rights concerning their personal information, such as a right to notice about a business’s data collection and selling practices. House Bill 969 also would establish a private cause of action for consumers affected by a data breach involving certain personal information when reasonable safeguards were not in place to protect that information. The bill would amend the state’s Florida Information Protection Act of 2014 (FIPA), to expand the definition of “personal information” to include biometric information. In the event of a data breach involving many consumers, $100 to $750 per violation could add up and entail serious and substantial exposure.

Read more

Virginia Enacts New Consumer Data Privacy Law

The newly enacted Virginia Consumer Data Protection Act (VCDPA), which goes into effect on January 1, 2023, gives consumers certain rights with respect to their personal data. The VCDPA applies to all persons that conduct business in Virginia or produce products or services that are targeted to Virginia residents and that

  1. Control or process persona data of at least 25,000 consumers during a calendar year or
  2. Control or process personal data of at least 25,000 consumers and derive over 50 percent of gross revenue from the sale of personal data. While the VCDPA does not create a private right of action for consumers, it does provide the AG an opportunity to seek injunctive relief and impose civil penalties of up to $7,500 per violation.

Read more

IMMIGRATION STATUS & eVERIFY

E-Verify Implements Call-in Process to Resolve Citizenship Mismatch TNCs

The United States Citizenship and Immigration Services (USCIS) has announced an E-Verify policy update that provides employees who receive a Social Security Administration (SSA) Tentative Non-confirmation (TNC) with a “citizen mismatch” reason with the option to call the Department of Homeland Security (DHS) to resolve their cases. The policy is intended to reduce the significant backlog of pending social security TNCs caused the pandemic. Employers are encouraged to update their E-Verify TNC process and tutorials to include a review of the SSA Further Action Notice (FAN) letter for citizenship status mismatch language; men- tion that employees can call DHS when discussing a citizenship status mismatch TNC; and be careful to avoid asking employees too many questions about their citizenship status.

Read more

Nationwide Screening Services

Disclaimer: All information presented is for information purposes only and is not intended to provide professional or legal advice regarding actions to take in any situation. Nationwide Screening Services makes no representations for any products or services that are mentioned and accepts no responsibility for any ac- tions or consequences taken without the guidance of a licensed attorney or professional consultant.

We’d like to hear from you! Please email us at info@nsshire.com

Free Background Checks

free background checks

Free still has a price

Have you ever tried to run a free background check? Maybe you Googled something like “free criminal records”,” free public records,” or “free background check.” The results that you get will vary and you may end up on a site that ostensibly looks like it is giving you free records. This is partially true but eventually comes with a price.

The challenge with the idea of free background checks is that while there are many public records sites available at no cost, they might not be appropriate for employment screening purposes. These sources can provide criminal records, civil records, marriage and divorce records, property ownership, and even fishing licenses or voter registration. However, getting the information is only part of the process. If you plan on using public record information for employment purposes, you need to know what you are looking at. You still will need to adhere to the FCRA, local and state requirements even when conducting a background check on an applicant yourself.

Many web sites will masquerade as public record sites. They will allow you to do a cursory search and return several options for you to follow up on. For instance, if you enter the name, approximate age and location of an individual, the website will return several potential matches. Then they will encourage you to order a detailed report for a fee.

The reality is this is a typical ruse that private companies used to lure you in to buying a background check. The background check will most likely not comply with the Fair Credit Reporting Act an often has a disclaimer that you must agree to not use it for employment screening purposes. These databases aggregate data from multiple states, counties, cities, courts and other public record sources. There are thousands of county courts, district courts, circuit courts, municipal courts, village courts and mayors’ courts across the country. Many of these will provide data directly to database aggregators who then resell it.

The database company will then reformat the data into a nice-looking report and that can be misleading. This data is often not verified and may only have arrest information that is outdated, without a disposition of the finding or proper identifiers of the person being searched. It is critical when conducting an employment background check to make sure that you are getting information on the correct person. The Fair Credit Reporting Act requires that when using a third party CRA (consumer reporting agency) that you ensure maximum possible accuracy when utilizing data such as this for employment screening purposes.

There is really no such thing as a free background check, at least for employment purposes. Violating the FCRA or any of the state and local laws surrounding employment screening can result in costly penalties and even discrimination lawsuits. It is important to use a qualified CRA to conduct your background checks. Many CRA’s will use a nationwide database check as an additional source to add to the scope of the background check. This may uncover potential jurisdictions that might have been missed otherwise. That data, however, is still vetted by a qualified investigator which is our process at Nationwide Screening Services.