Revisiting Background and Drug Screening Policies

In light of legislation enforced at the beginning of this year, employers that utilize employment background checks should conduct a “check-up” on their current employment and substance abuse screening policies to ensure compliance.

Revisiting background and drug screening policies is highly encouraged for all organizations of different sizes and industries.

Before employers decide to implement employment background checks, they must create a non-discriminatory background screening and substance abuse policy. These policies specifically state:

Purpose of the Policy – State why the organization conducts background checks.

• Promotes safe workplace
• Mandated by law
• Awarded contract
• Promotion/pay increase
• Avoids claims of discrimination
• Uniform process for all applicants
• Ensures compliance with all applicable laws

Scope of the Policy – Employment screening policies should be designed to protect the property and people your employees will come in contact with.

• Current employees
• New hires (post-offer)
• Vendors
• Contractors
• Interns
• Volunteers
• Temps (temporary employees)
  • New background check will be ordered once hired

Responsible Organization – Which department will be implementing and managing the policy?

• Human Resources
• Payroll
• Compliance Department
• Controller

Sensitive Positions – Identify each position within the organization.

• Safety Positions
• Finance
• Driving
• Executives

Hiring Managers Responsibility – Review and approve completed reports.

• Carefully reviewing each report to eliminate inaccuracies or negative/derogatory information
• Promptly communicating to the background screening organization their intentions of not offering employment based on background report results
• Following the pre-adverse and adverse action process (applicant dispute process), which should be explained by the background screening organization
• Americans with Disabilities Act (ADA) and discrimination
• Screening policies should designate the people or person responsible for implementing and managing the program as well as define the types of employment decisions that may be made by each individual involved in administering the program
• Making documented decisions in situations that require “discretion” and/or “judgment calls”

Retention Records – Where are reports stored and how long are they retained for?

• All employee records should be stored until that employee is terminated
  • Background report
  • Form I-9 paperwork
  • Corrective action
  • Employment application
  • Evaluations
• Disclosure and authorization form
  • Retain for a period of five years
  • CRA Audits

Legal Compliance – The organization must abide by all federal and state laws (FCRA).

• Revisiting background and drug screening policies ensures that organization abides by the Fair Credit Reporting Act and all other federal/state laws
  • FCRA
  • State law
  • EEOC guidelines
  • Anti-Discrimination Laws
• Policy should give clear direction as to how results of any background check should be applied in a consistent and equitable manner across all applicants
  • Any felony conviction within the last seven years (disqualified)
  • Any bankruptcy or civil judgments within the last five years
  • DUI convictions for delivery drivers occurring within the last five years
• EEOC requires employers to show that it considered these three factors to determine whether its decision was justified by business necessity
  • Nature and gravity of the offense(s)
  • Time that has passed since the conviction and/or completion of the sentence
  • Job held or sought
• Employers may not simply follow an “applicants with a criminal records need not apply” strategy
  • Statistically could result in unfair or discriminatory impact on certain groups of people
  • Employers should determine if there is a rational, job-related reason as to why a candidate may be unfit for a job