The Difficulty in Weeding Out a Legal Substance
With medical marijuana use legal in 23 states and recreational use legal in Colorado and Washington, employers who want to maintain a drug-free workplace are finding themselves in murky territory. In fact, some employers question whether or not maintaining an environment free of drug users is even a viable concept, and conducting drug screenings on employees in states that allow medical and recreational marijuana use is nothing short of a legal headache.
Employee drug use is problematic for employers because drug abusers cost companies money and productivity, and their habits elicit safety concerns, particularly in the workplace where employers have legal obligations to all of their employees. For this reason, marijuana is still considered an illegal substance on the federal level, despite its legal status in some states. Therefore, federal institutions can still prohibit their employees from gaining employment if they test positive for marijuana during a drug screening.
Those who find themselves benefitted by the legal use of medical marijuana, and those who have the ability to partake recreationally in Colorado and Washington, do not feel that their drug use outside of the workplace should affect their employment. If the purpose of a drug screening is to eliminate drug use in the workplace, then the concerns of the aforementioned individuals are completely valid.
The problem employers face when conducting drug testing on employees is that drug tests cannot determine whether or not a person is high on THC (the chemical in marijuana responsible for the psychological effects) at the time of the test, only that the chemical is present in the person’s system. THC can stay in someone’s system for several weeks depending on the individual and usage frequency. The current method of drug testing complicates retention decisions for employers because they want to eliminate the negative effects of drugs on employee performance and workplace environment.
Colorado law dictates that employers cannot terminate an employee if he/she uses marijuana off-site during non-working hours, as long as that is in accordance with state law. Employers in Colorado can only prohibit employees from using marijuana at work. Colorado’s solution seems simple enough, but how employers respond to employees who test positive for THC in states that have legalized marijuana use isn’t always uniform, nor is how employees monitor their usage in relation to work time.
Since drug screening occurs as a result of safety and productivity concerns, employers in states that have legalized marijuana (and one can only assume that number will grow) can help themselves maintain a drug-free work environment by educating themselves on state and federal laws regarding marijuana use and employment, effectively communicating drug policies to new and current employees, and acquiring legal assistance if and when an issue arises.
Minnesota Drops the Box on Criminal Record Screenings
In the past year, Minnesota law amendments made major changes in how employers conduct criminal background checks on prospective employees. According to a law put into effect on January 1, 2014 employers cannot run criminal background checks on employees prior to:
- the job candidate being selected for an interview.
- the job candidate receiving a conditional offer of employment without an interview.
Additionally, employers cannot ask job applicants any questions or require “check the box” options about criminal history on pre-employment materials. However, employers can still inform prospective employees that certain types of criminal records will disqualify them from employment, and any positions that require a background check by law will remain subject to such preliminary screenings.
The goal of the new law is to aid in the rehabilitation of applicants with criminal records. The law alleviates automatic disqualification from applications, leaving prospective employees with criminal records the opportunity to explain discrepancies background after proving their qualifications.
Not only must employers in Minnesota relinquish their ability to rely on criminal background checks to reduce job applicant pools, but they must also adjust their hiring practices to mirror the new law. Any violations result in fines.
This law is a bold move for Minnesota because it sends the very clear message that individuals with a criminal record deserve the opportunity to obtain jobs for which they are qualified, or at the very least explain their past behavior in the hope of bettering their career prospects. Minnesota government also hopes that the law will shrink disparities in employment demographics.
The new law is referred to as “Ban the Box,” a clear metaphor for looking outside of the idea that someone deserves a job opportunity solely based on his or her criminal record. Keeping in mind that Minnesota employers aren’t forced to hire anyone they do not wish to employ, Ban the Box does appear to be a well-intentioned tool that gives qualified job applicants with criminal records (that may not affect their work environment at all) the boost they need to rehabilitate their lives.
An Increase in Employment Verifications Could Decrease Dishonesty
Employment verification and reference checks are a critical part of the hiring process, for they often tell more about a job candidate than a criminal background or credit check. However, outside of providing basic information for past employers and a phone number here and there for employment references, one might not consider the scrutiny his or her information actually endures. With resume indiscretions on the rise, job seekers should be aware of how the information (and which information) they provide will be screened, because any pieces that don’t stack up to what is on paper could result in losing a job opportunity, or, for current employees, termination altogether.
In all honesty, some employers don’t verify any information that employees provide on their resumes, while some analyze every piece, from job titles to dates of employment. Even though some employers don’t want to take the time to make a phone call, doing so is one of the easiest ways to determine a hiring candidate’s level of integrity.
Third-party background screening firms can enhance the employment verification process and provide employers with a comprehensive picture of a candidate’s educational and professional background. These firms can verify every piece of a prospective employee’s information and then some, not only by interviewing previous supervisors to verify basic job details, but also by obtaining information like why the employee left his or her previous position. Firms like Victig can accomplish this amount of research in as little as 24-72 hours. The most common items employers and third-party screening firms verify include:
- Dates of employment
- Reason for termination of employment
- Supervisor references and recommendations
- Academic degrees obtained (including dates of attendance)
- Professional licensing
Ironically enough, the aforementioned items are also the most common pieces of information job candidates falsify on their resumes, so prospective employees should make sure they are accurately completing every detail of their employment history, because the facts are all too easy to check.
While not all employers adhere to the same standard or process in verifying the details of their employees’ professional background, they should be conducting some amount of research. Doing so will encourage job candidates to be more honest on application materials and ensure that workplace environments are saturated with meticulous individuals who treat their careers and personal integrity with respect.
3 Things You Should Know About Negligent Hiring
Whether the economy is weak or thriving, safety in the workplace is always an issue. However, in a financial market where many businesses have the primary goal of survival, the salient nature of monetary stability is critical. Therfore, employers need to be aware of how negligent hiring could affect their businesses in order to close themselves off to unnecessary legal and finanical liabilities.
- What is negligent hiring? Negligent hiring is “a claim made by an injured party against an employer.” Employers should know details about their employees’ backgrounds to ensure that they are hiring safe, trustworthy individuals. Not only is it good for employers to be aware of past issues that might affect their businesses, but employers are responsible for knowing background information on everyone they hire, including any discrepancies in criminal or drug-related fields that post safety issues. As far as negligent hiring statutes are concerned, employers are accountable for knowing any piece of information that might come up in a comprehensive background check.
- How can negligent hiring affect a business? What employers should know about their employees can hurt them, especially considering 79% of employers lose negligent hiring lawsuits. A background check may cost an employer a small fee, but negligent hiring issues carry monetary, reputation, and fatality risks that far outweigh the price of due diligence.
- How can a company protect itself against negligent hiring litigation? The easiest way for employers to avoid suspicion of negligent hiring is twofold:
- The rise in such lawsuits demonstrates a need for thorough background investigation of all potential and current employees. Employers need to access information that indicates an employee may have a propensity for violent behavior, dishonesty, and/or drug use.
- Employers must act on their background screening findings. If a new hire or current employee check reveals information that poses a threat to the workplace, the employer must address and act on that information.
Employers cannot claim ignorance is bliss when one of their employees acts in a violent or criminal manner. Background checks grant employers access to the information they need to maintain safety in the workplace. If an employee commits a crime and a background check did not reveal a tendency toward that type of behavior, the employer cannot be subject to negligent hiring because all necessary safety measures were taken. The law is clear and the solution is simple: background checks have the ability to safe companies from vulnerabilities and employees from harm.
Why Hiring Based on Intuition Alone is Playing a Dangerous Game
No one wants to find themselves in the middle of a lawsuit, particularly not businesses with profits to acquire and employees to manage. However, some employers argue that they can sucessfully save a buck or two by foregoing criminal background checks on prospective employees and relying on intuition instead.
Employment law experts say that intuition alone comes with a heavier price than an employee screening fee. In fact, solely relying on one’s gut when making a hiring decision may spare the cost of a background check, but the employer may end up paying much more in the end by taking the risk of failing to screen potential employees. Not only do the simplest background checks illuminate a person’s history and general character, but they safeguard businesses from being vulnerable to two main types of lawsuits:
1. Negligent hiring lawsuits occur when an employee commits a criminal act in the workplace and the company did not run a background check that could have divulged the employee’s propensity to commit the crime.
2. Negligent retention and supervision lawsuits occur when a company ignores employee behavior that endangers the business itself or the nature of the workplace for other employees. If an employer knows an employee has an issue that requires correction or termination and does not investigate the situation and/or act on the problem, that employer only invites legal trouble. Employers carry a much heavier legal responsibility when they do not screen their employees.
Forking out the cash for a simple background check fee is much easier than shoveling money into a lawsuit, but employers should also make sure that they aren’t being cheap when choosing a third-party to conduct their employee screenings. Legitimate entities that specialize in background checks will provide a comprehensive report and follow FCRA guidelines for screening employees. Anyone looking to make a hiring decision should likewise know the legal rights of everyone involved in the background screening process.
Background checks do require money, and a decent background check is going to cost more than a negligent one that doesn’t obtain information from a variety of reputable sources. However, when one considers that background checks give businesses a viable reputation for hiring quality candidates and avoid vulnerability to lawsuits, money spent on legally vetting employees (combined with educated intuition) is nothing short of the best investment.
US Senate Calls for Stricter Background Check Regulations in Schools
Senate is getting serious about child welfare in public schools. Earlier this month, Pennsylvania Senator Pat Toomey and West Virginia Senator Joe Manchin proposed a bill that would require schools in all states to raise the bar when performing background checks on employees and volunteers. The bill would disallow public schools from hiring anyone convicted of the following:
- Violent Crimes
- Sex Crimes
- Crimes against Children
The bill further requires the schools to pass on existing and prospective employees convicted of felony assault and/or drug offenses within the last five years. Additionally, school districts would no longer be able to engage in the practice of “passing the trash,” where employees suspected of child abuse are often sent to other school districts so that the current employer does not have to deal with the problem.
Currently, 12 states do not require any sort of background check on several non-teaching positions, including volunteers and classroom aides, and Toomey’s bill would aim to safeguard children on a much more comprehensive level.
Under the proposed bill, public schools must check all employees and volunteers against two state databases and two federal databases. Non-compliance with the bill would result in a loss of a portion of federal education funding.
Those opposed to Toomey’s bill cite three reasons for its rejection.
- If a school employee has committed a crime and paid his/her time, some members of senate believe that individual should not be further punished by being barred from gaining employment in public education. Toomey responded by stating that children should never be put at risk by exposure to anyone who has committed a violent or sexual crime against a child.
- Certain senators would like to see matters of public education handled at the state level, but Toomey argues the practice of passing the trash necessitates federal control in order to protect children (in 2014 alone, 459 school employees were arrested for crimes against children).
- Some contend that any provision that dictates how to handle school employees that are merely suspect of misconduct against a child and have not actually been convicted is an unfair and convoluted requirement. However, Toomey states that passing the trash occurs in many cases where sufficient evidence existed to terminate an employee but not necessarily to convict him/her.
The bill’s inception was inspired by a case of passing the trash, where an employee in Pennsylvania suspected of misconduct was passed to a school district in West Virginia. The employee ended up raping and killing 12-year-old Jeremy Bell in the district to which he was sent.
Though extensive background checks for employees and volunteers in public schools may seem controlling and invasive to some, the evidence indicates that the safety of children in schools is much more important than the convenience of the adults, and Toomey’s bill provides the perfect opportunity for the senate to show how much it values the well-being of America’s children.