Does Employment Drug Testing for Marijuana Still Make Sense?
Posted on: August 29, 2017
One of the more interesting topics that is emerging daily in discussions with my diverse client group revolves around drug testing for marijuana as a part of a comprehensive approach to achieving and maintaining a drug free workplace. Historically speaking, the vast majority of drug screens used for employment purposes have always tested for marijuana. While the regulators and lawmakers will provide us with endless laws and guidance on this topic soon enough, in this moment there is a lot of discussion on both sides of this issue.
To test or not to test. That is the question.
Some say, if it is legal for recreational or medical use at the state level, then why test for it? The logic that I hear is that we do not routinely test for alcohol, so why test for marijuana? The Department of Labor for the state of Maine has announced that under the new recreational marijuana law, which is scheduled to go into effect in February, the majority of Maine businesses would no longer be able to test job applicants for marijuana use or fire an employee for a marijuana-positive drug test unless they could also prove use or impairment on the job.
Others are just as committed to building their companies without the added concern of hiring and employing those who use the drug. Logically, it is still a schedule 1 controlled substance at the Federal level. Isn’t that a law? Don’t we strive to be compliant with the rule of law, and not just the laws we agree with? Given the uncontrolled variables that can influence the effects of intoxication, not the least of which is inconsistent concentration and dosing, shouldn’t the testing for marijuana remain in place? This is a compelling question.
There is little doubt that impairment can hold very real threats to employee and public safety.
In speaking with drug testing manufacturers, there are a couple who are putting drug screen instant tests into production that do not test for Marijuana. Interestingly, many are not producing and do not currently plan to produce or sell instant tests without marijuana as a panel. We can customize a lab based test with any of our lab based testing partners, but none of the major labs are currently offering standard testing without marijuana as a panel.The demand for tests without marijuana is still very low.
Should employers have the ability to decide if they will drug test for marijuana?
If they don’t find their voice on this issue the opportunity to influence the legislative and policy making bodies is passing very quickly. What are your thoughts?
E-Verify / Potential Shutdown Notification
Posted on: April 25, 2017
Please be advised E-Verify may not be accessible in the event of a government shutdown which could occur at the end of this week if a funding bill is not passed by Congress.
In the event of a government shutdown, employers are reminded that they must continue to complete Form I-9’s in compliance with the law and plan on creating cases in the E-Verify system when the service resumes.
Employees would still be required to complete Section 1 of the Form I-9 on or before the first day of employment, and employers would still need to complete Section 2 of the Form I-9 no later than the third business day after an employee begins working for pay.
During prior shutdowns, USCIS issued guidance suspending the “3-day rule” for any case affected by the shutdown.
Historically, employees caught in Tentative-Non-Confirmations were also provided with an extended time period to resolve the TNC.
Please continue to enter E-Verify cases into our system as usual. Once the potential shutdown ends, we will then auto process all outstanding E-Verify cases.
We will keep you posted as more information becomes available.
Salary History Request Prohibited?
Posted on: April 21, 2017
Does your jurisdiction prohibit salary history inquiries during the hiring process? The list of jurisdictions is growing every day. The state of Massachusetts, Philadelphia, and New York City all have active or pending legislation restricting the practice of obtaining salary histories. You can bet that the list will grow!
Christmas and New Years 2016 Operating Hours
Posted on: November 28, 2016
In observance of the Christmas and New Years Holidays our office will be closed on Monday, December 26th and Monday, January 2nd.
If you have any questions, or need any further information, please contact our Customer Service Team at 888-808-9997 or by email at firstname.lastname@example.org .
We thank you for your continued partnership, and we wish you and your families a beautiful Holiday season and a Happy New Year!
Thanksgiving Holiday 2016 Observance and Operating Hours
Posted on: November 19, 2016
In observance of the Thanksgiving Holiday, our office will be closed on Thursday, November 24th.
We will resume our regular business hours on Friday, November 25th.
If you have any questions, or need any further information, please contact our Customer Service Team at 888-808-9997 or by email at Customerservice@iprospectcheck.com .
We thank you for your continued partnership, and we wish you and your families a warm, safe and bountiful Thanksgiving Holiday!
The Top 3 Questions Property Managers Need to Ask NOW
Posted on: October 25, 2016
What 3 questions do you need to ask yourself right now?
1. Is it time to review your tenant screening program for compliance with the Fair Credit Reporting Act?
- Know the FCRA. A good screening company can help you with this.
2. Does your screening partner know the law?
- A good screening company can help you by providing you with guidance on Consent and Authorization documents.
- They can provide you with tools to help you automate and document your Adverse Action steps.
3. Are you prepared for the potential class action lawsuits that may emerge as a result of non-compliance?
- Employers were slow to adapt and paid millions of dollars to class action plaintiffs and lawyers who know the pitfalls and utilize them to their benefit.
- There are professional plaintiffs out there that know the law and are actively seeking violators.
Be proactive. Work with professionals to insure your compliance. The FCRA isn’t just for employers anymore!
Here are links to the materials provided by the FTC:
The Top 2 HR Related Class Action Threats in 2016
Posted on: April 28, 2016
Big Settlements Over Background Check Compliance
Background checks are an important part of building excellent teams and safe workplaces. When done properly they are an invaluable tool. The practices surrounding HOW background checks are authorized, ordered, completed and utilized has come under intense scrutiny over the past few years with two items remaining at the TOP of the list of low hanging class action fruit.
It intrigues me to read the news stories and lawsuits when top quality employers are regularly forking over millions of dollars for making entirely avoidable mistakes. According to the NAPBS, a whopping 67% of employer focused cases have been attributed to the following TWO background check related compliance areas:
Number 1 – Disclosure and Authorization lawsuits dominate the headlines.
That paragraph that attempts to deflect the employers liability for the background check process, etc.? You might want to examine that practice. Did you slide in a paragraph on the employment application dealing with Consent? Both are common and both practices are very, very bad ideas. You will want to have an excellent FCRA expert attorney advise you on implementing a compliant Disclosure and Authorization form.
Number 2- Failing to follow the Adverse Action Requirements of the Fair Credit Reporting Act.
Yes, the Fair Credit Reporting Act applies directly to background checks, not just credit reports. To be clear, it should be called the “Fair Credit and Employment Screening Act”, because that is a more obvious title and might be more appropriate. You can’t adopt a policy of running background checks and not including the very specific steps that are required by federal law when you are going to use information included in a background check report to make an adverse decision about a person’s employment.
What if the background check contains erroneous information? The Adverse Action process is extremely fair and effective. If you want to win the battle for talent you will need to follow Adverse Action procedures. It will make you a better company. At the risk of repeating myself, have an excellent FCRA expert attorney advise you on implementing compliant Pre-Adverse Action and Adverse Action Notifications.
This is a simple problem to fix. Please take my advice and sit down with an expert FCRA attorney and address these two areas of compliance. The people in your company work hard to produce the earnings that insure their prosperity and the success of your company. Don’t give those earnings away because you didn’t spend a few hours perfecting your background check compliance practices with an expert.
Remember King Richard III, “My kingdom for the want of a horseshoe nail”.
California Prop 47 Impacts LiveScan Background Check
Posted on: January 29, 2016
On November 14 of 2014, California voters approved Prop 47 which, among other things, required the reclassification of the following THEFT and DRUG RELATED crimes from felonies to misdemeanors:
Receiving/Concealing Stolen Property (value not to exceed $950)
Simple Possession of Heroin, Cocaine, Listed Controlled Substances
Simple Possession of Concentrated Cannabis, Methamphetamine, Ecstasy
Simple Possession of the “Date Rape Drug” GHB
In response to this legislation, the Los Angeles County Sheriff’s Department and many others around the state have been effectively citing and releasing these offenders back into the community while awaiting their court date. While this is troubling for many reasons, the Sheriff’s Department has cited two major concerns. First, these individuals may continue to commit additional crimes while waiting for their court date and second, the jail population will eventually increase as the cases are adjudicated.
To add to the concerns of law enforcement, employers who are required by the State of California to utilize the Live Scan system to background check potential employees should be aware of another potential implication. When law enforcement cites and releases an offender who has not had their fingerprints collected, the Live Scan process may very well fail to identify these individuals with convictions because the Live Scan system relies on the fingerprints of the applicant to search for records.
According to the Attorney General’s website for the State of California: “The California Department of Justice (DOJ) is mandated to maintain the statewide criminal record repository for the State of California. In this capacity, sheriff, police and probation departments, district attorney offices, and courts submit arrest and corresponding disposition information. The DOJ uses this information to compile records of arrest and prosecution, known as “RAP sheets,” for individuals and disseminates the information for law enforcement and regulatory (employment and licensing) purposes. RAP sheets are based upon fingerprint submissions, and therefore positively identified biometrically; a process by which a person’s unique identity is confirmed.”
Interestingly enough, a potentially unintended consequence of Prop 47 may be the reduction of the reliability of a Live Scan background check. In the Prop 47 era, a caregiver who was hired to care for your elderly parent or vulnerable child may have been convicted of Grand Theft, Possession of Methamphetamine, or Check Forgery and cleared for work inside your home or long term care facility by the State of California.
As an employer, you may find it indispensable to utilize a private background checking company in addition to Live Scan in a good faith effort to meet the due diligence requirement in the hiring and management of employees who will be trusted with the care and safety of others. A private background checking company will rely on completely different methods to obtain records and will report their findings to you quickly and inexpensively allowing you to make better informed decisions.
Matthew J. Rodgers, PHR
Advanced FCRA Certified Expert
NY City Enacts Ordinance Banning Use of Credit Reports by Some Employers
Posted on: May 29, 2015
Thanks to Larry Henry and Mike Sankey for bring this to our attention. As always, consult with legal counsel to learn how this may impact policy for your company:
New York City Places
Restriction on Use of Credit Reports
On May 6, 2015 the Mayor of New York City, Bill de Blasio, signed Enactment: 2015/037, banning the use of credit reports by some employers. This ordinance will go into effect on or about September 3, 2015. The ordinance contains numerous and complicated exceptions, some of which require a familiarity with the functions of New York City government. Here are the exceptions to the prohibition:
1. Employers, or agents thereof, that are required by state or federal law or regulation to obtain a credit report.
2. Self-regulatory organizations under §3(a)(26) of the Security Exchange Act of 1934.
3. Peace officers:
o as defined in subdivisions 33 & 35 of section 1.20 of criminal procedure law;
o position with law enforcement;
o position with investigative function at the city Department of Investigation
4. Those governmental appointed positions in New York City that have a “high degree of public trust” as defined by commission.
5. Positions required to be bonded under local, state or federal law.
6. Positions requiring a security clearance under any state or federal law.
7. Non-clerical, position having access to: trade secrets1, intelligence information2 or national security information3. These terms are defined: trade secrets relate to private employees (does not include access to customer/mailing lists); the latter two relate more to governmental positions but will cover some private employer positions.
8. An employee having signatory authority over third party funds or assets of $10,000 or more.
9. An employee having authority to enter into financial agreements on behalf of the employer for over $10,000.
10. Positions that allow employee to modify digital security systems.
11. Persons required by §12.110 of the New York City code to provide disclosures relating to conflicts of interest.
Some of these exceptions are very technical and specific to a limited number of positions. CRAs doing business in New York City, especially with New York City will need to consult with local counsel to be able to identify positions that are exempt from this city ordinance.
The term”trade secrets” means information that: (a) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; and (c) can reasonably be said to be the end product of significant innovation. The term “trade secrets” does not include general proprietary company information such as handbooks and policies. The term “regular access to trade secrets” does not include access to or the use of client, customer or mailing lists.
The term”intelligence information” means records and data compiled for the purpose of criminal investigation or counterterrorism, including records and data relating to the order or security of a correctional facility, reports of informants, investigators or other persons, or from any type of surveillance associated with an identifiable individual, or investigation or analysis of potential terrorist threats.
The term”national security information” means any knowledge relating to the national defense or foreign relations of the United States, regardless of its physical form or characteristics, that is owned by, produced by or for, or is under the control of the United States government and is defined as such by the United States government and its agencies and departments.
A copy of the law (Int 0261-2014) may be viewed at:
2015 Top 5 Trends for Background Checks
Posted on: January 22, 2015
Welcome 2015! Last year was a progressive year for compliant employment background checks. With all the technological advancements and different compliance and regulatory issues that stirred up 2014, we will attempt to break down the Top 5 trends for Compliant Background Checks, and how it will affect employment screening service clients in general for this year: