Transcript Employee Screening: Hear No Evil, See No evil, Pay the

Employee Screening
Hear No Evil, See No Evil:
Pay the Consequences
Limiting liability while enhancing
safety and productivity
Employee Screening
Drug & Alcohol
Testing
&
Background
Checks
Drug & Alcohol Testing
Substance Abuse in the Workplace
• Cost to business - $1 billion a year
• 500 million workdays lost annually
• 75% of adult illicit drug users & 80% of
heavy or binge drinkers are employed
• More than 60% of adults know people
who have worked under influence of
drugs or alcohol
• 19 million people in US currently use
illegal drugs.
Key Metrics Impacts of
Employee Drug and Alcohol Use
Turnover
• substance abusers change jobs as
often as 3 times per year
Productivity
• substance abusers are 33% less
productive than peers
• SHRM found organizations starting
drug and alcohol testing see a 19%
increase in productivity
Key Metrics Con’t
Absenteeism
• substance abusers are 2.5 times
more likely to be absent for more
than 8 days per year
Workers Compensation Claims
• substance abusers can double the
cost of workers’ compensation costs
for employers
Idaho is a Red state…and we’re not
just talking politics!
DEA and NFLIS 2006 Annual Report
Benefits of Drug & Alcohol Testing
Increases
• safety
• bottom line
• productivity
• quality of work
• retention
• reputation
• recruitment
Decreases
• recruitment costs
• absenteeism
• work related injuries
• Workers’ Comp costs
• workplace conflict
• shrinkage
• health care costs
• negligent hiring claims
Negligent Hiring
• Caused by superficial screening &
sloppy hiring
• Liability due to many types of behavior
•violence
•theft
•harassment
•fraud
• Average settlement nearly 1 million
• Employers have lost 79% of cases
Why Pre-Employment
Testing is Not Enough
The positive rate from random tests is
47% higher than the pre-employment
testing positive rate in general industry,
according to Quest Diagnostics.
Federal Regulations Specify
• Who gets tested
• What gets tested
• When they get tested
• Where they get tested
• Why they get tested
• How they get tested
When It All Started
• Reagan’s Executive Order 12564 (1986)
• Mandated a Drug Free Federal Workforce
• Each agency to establish program
• Sec. Health & Human Services (HHS)
• governs SAMHSA
• establish scientific & technical test
guidelines
• specify drugs for testing
Department of Transportation (DOT)
(49 CFR, Part 40)
DOT mandate 5-panel urine lab test
• Marijuana
• Opiates (includes morphine, heroin)
• Cocaine
• Amphetamines/Methamphetamines
• MDMA (Ecstasy)
• Phencyclidine (PCP)
NON-Mandated 5-panel test
• no Ecstasy
• urine, saliva or hair-instant or lab
Prescriptions Drugs
• 2012 – more over doses from
prescription drugs than illicit drugs
• MRO asks for doctor and/or pharmacy
information
• Negative test if MRO verifies
existence of medically necessary
prescription and legal use of
prescribed substance
• Deadline will be given for information–
maximum of five days
Idaho Employer
Alcohol and
Drug-Free
Workplace Act
(IC 72-1701 et seq)
Drug-Free Workplace Act
• Governs private employers only*
• Purpose – promote alcohol & drug
free workplace
• Tests can be condition of employment
• Company bears costs
• Confirmation test required
• Unemployment denied if positive test
• Presumption & limitation of damages
Drug Free Workplace Act Con’t
Written policy required – must include
• termination possible if fail test
• list types of testing to be used
• employee rights specified
• to explain test result
• request re-test at lab within 7
days
• paid if re-test negative
What Constitutes a Positive Test
• Substitution of
specimen
• Alteration of
specimen
• Attempt to alter
or substitute
• Failure to appear
• Failure to remain
at collection site
• Failure to
provide sample
• Refusal to test
• Refuse second test
• Provide insufficient
sample and refuse
medical exam
• Obstruction of
testing process
• Refuse direct
observed test
Common Testing Methods
• Urine - instant
• Urine - lab based
• Hair test
• Saliva - lab or instant
• Sweat test
• Breath alcohol
• breathalyzer
• instant
Best Practice
is a Robust Testing Program
• Pre-employment
• Baseline
• Random
• Reasonable suspicion
• Post accident
• Return to duty
• Follow-up
Idaho Workers Compensation
Premium Deduction
With a full Drug Free Workplace
Program, Idaho employers can receive
up to 5% off of their annual Workers’
Compensation premium.
Supervisor Training
Signs of Drug and Alcohol Use
Best practice
Managing Substance
Abuse in the Workplace
• Federal Law Requires
Training required for
reasonable suspicion
testing
Supervisor Training Should Include
• Company policy
• Laws of jurisdiction/industry
• How to recognize substance abuse
• Indicators for reasonable suspicion
• What to do about it
• Steps to limit liability
• Documentation and discipline
options
Reasonable Suspicion
• Violation of company policy
• Question of employee sobriety
• Indicators MUST be observed by
supervisor
• physical
• behavioral
• performance
• drug paraphernalia
• combination
Drug Paraphernalia
Background Checks
Background Checks are a good
business decision
• More than one in four adults are
estimated to have a criminal record
• 46% of employment, education, and/or
credential reference checks show
discrepancies between applicant and
source reports
• 11% of job applicants misrepresent
why left prior employer
Most Common Background Checks
• Social Security Number Validation
• Social Security Search - Name &
Address History
• National Criminal Search
• National Sex Offender Search
• County or State Criminal Search
• Motor Vehicle Record
• Credit
• Education verification
Fair Credit Reporting Act (FCRA)
• Governs 3rd party consumer reports
• Some key requirements
• consumer reporting agency
• disclosure & authorization
• advance notice - adverse action
• copy of rights under FCRA
• opportunity to dispute record
• handling & retention of information
Fair Credit Reporting Act (FCRA)
Forms typically used in screening
• Summary of Consumer Rights under
FCRA
• Notice to user of Consumer Reports of
their Obligation under the FCRA
• Notice to Furnishers of Information of
their Obligation under the FCRA
• All modified effective January 1, 2013
More State and Federal Restrictions
• State, county, city laws/rules
• 8 states bar/restrict use of credit checks
• Ban the Box - 19 states
Convictions older than 7 years barred
• FCRA – mandatory
• EEOC – advisory
• Exceptions for other federal laws
• Bank – no convictions past 10
years
Best Practices
• No use of criminal histories as a per se
bar to employment
• Use EEOC’s guidelines in use of
criminal history in hiring decisions
• No questions of criminal convictions in
applications
• Only ask about criminal history when
position where criminal history may be
relevant
• Limit questions to convictions with
nexus to job duties
EEOC Position on
Criminal Background Checks
Use of conviction record may violate
Title VII disparate treatment and
disparate impact theories if employer
intentionally and selectively enforce
screening policy against protected
class members
EEOC Position Con’t
If policy has disparate impact, policy
must be “job related and consistent
with business necessity”
Title VII pre-empts state law
3.13M conciliation agreement with
PepsiCo – blacks excluded by
criminal background check policy
(2012)
EEOC Guidelines
Re-embraced three factors when
evaluating criminal history
1. nature & gravity of crime
2. time lapsed since conviction or
completion of the sentence
3. nature of job sought or held
Must use “individualized assessment”
• Must give opportunity to give
extenuating circumstances or error
EEOC Guidelines Con’t
Arrest records
• can not be sole reason to deny job
• use only if not banned by state law
• use conduct underlying record
• must render person unfit for
position
• e.g. school bus driver arrested
for DUI
Social Media Searches
• Tread carefully
• use of prohibited information may
violate federal & state discrimination
laws
• age, religion, disability etc.
• evidence in discrimination claim
NLRB – Social Media
Under NLRB guidelines employees
can discuss wages and work
conditions without repercussions
• Deemed concerted activity
Vendor Selection
Testing & Background Checks
• Single source
• 24/7 availability if appropriate
• Guidance and coaching available
• Knowledgeable of federal & state laws
• Supports clients’ compliance
• Updates on laws and regulations
• National services
Testing Vendor Criteria
•Take responsibility off your plate
•Manage drug/alcohol test program
•Interface with employees
•Provide MRO services
•Cost effective
•Handle lab, results, testing supplies
•Manage random test program
•Provide mobile & certified collectors
In-House Program Risk - Test
• Increased liability, responsibility, time
• Evaluate/select labs and MRO
• Evaluate test devices/methods
• Train/certify collectors
• Calibrate equipment
• Scientifically valid random program
• Compliance with federal and state laws
• Procedure for positive tests
• Interface with employee
• Potential claims of discrimination
Background Check Vendor
• Licensed Consumer Reporting Agency
• Large, accurate, updated data bases
• Ability to search nationally
• Working knowledge of FCRA
• Required documents
• Verifications
• Knowledge of related laws
• Turn-around time
• Web-based
• Confidentiality
In-House Program Risks - BGS
• Increased liability, responsibility, time
• Inaccurate data bases
• No national data base
• Procedure to research & correct records
• Compliance with state and federal laws
• Cost
• Slower turn around time
Q&A
This presentation contains the opinions of the
presenters and does not constitute legal advise.
Kail Q, Seibert, JD
[email protected]
Susannah Arnim, SPHR
[email protected]
(208) 331-5057
Aheadofthekurve.com
[email protected]