Category Archives: Employment Screening

Drug Testing Unemployment Insurance Applicants: An Unconstitutional Solution in Search of a Problem

Source: Rontel Batie, George Wentworth, National Employment Law Project (NELP), Policy Brief, February 2017

From the summary:
Historically, states have never drug tested applicants for unemployment insurance (UI), primarily because the Social Security Act prohibits states from adding qualifying requirements that do not relate to the “fact or cause” of a worker’s unemployment. In the aftermath of the Great Recession, however, some states, in a misguided effort to try to contain the high costs of their UI programs due to high unemployment rates, began clamoring to drug test UI applicants. Their hypothesis (without any facts or data to back it up) was that claims would somehow substantially decrease, either as workers tested positive for drugs or declined to apply because of their drug use.

Mindful of the goal of drug-free workplaces but also of the lack of any data that drug use was an issue among the unemployed, in 2012, Congress reached a narrow compromise on drug testing UI claimants, one that took into account the serious constitutional issues with suspicionless drug testing. Congress agreed to allow, not require, states to test UI claimants in two specific, narrow circumstances: (1) workers who had been discharged from their last job because of unlawful drug use, and (2) workers looking for jobs in occupations where applicants and employees are subject to regular drug testing. Consistent with the new federal law, the U.S. Department of Labor issued regulations that closely tracked the legislation, defining occupations subject to regular testing to mean occupations where testing is legally required (either now or in the future), and not merely permitted.

Congressional Republicans, unhappy with the compromise they agreed to in 2012, have criticized the Labor Department regulations since they were proposed, claiming they were too narrowly drawn even though they closely tracked the legislation. The House of Representatives is now planning to invoke the Congressional Review Act to invalidate these regulations; and presumably, proponents of drug testing are counting on passage of a bill introduced in the 114th Congress by Rep. Kevin Brady (R-TX) that would effectively allow states to drug test all jobless workers filing for unemployment insurance. This bill, which we expect will be reintroduced shortly, would allow states to define occupations that “regularly” drug test to include all occupations where testing (including pre-employment testing) is permitted. If passed, this bill would open the floodgates for states to arbitrarily and unconstitutionally drug test its citizens solely because they are applying for UI benefits.

No one should be so confident that this bill could pass the Senate. Proponents have been trying to build support for drug testing UI claimants for years; but for the very narrow compromise reached in 2012, there has been no wider bipartisan support for the policy. Indeed, that is because such drug testing is simply another humiliation piled onto unemployed workers—a hurdle designed to be so stigmatizing that it discourages people from even applying for a benefit that they have earned in the first place….

Hair-Follicle Drug Testing: Lessons for Employers

Source: Hassan A. Kanu, Daily Labor Report, October 19, 2016

….The data on drug testing by employers are largely imprecise, but a 2016 survey of 3,459 HR professionals done by HireRight showed that 92 percent of employers that perform drug screens use urinalysis, while 8 percent use hair tests. While there are flaws in both the urinalysis test and the hair-follicle test, it’s the hair-follicle test that is the most unreliable and could cause headaches for employers….. Scientific studies have also found another issue with hair-follicle testing: a likely racial bias. ….

Racial Profiling in Hiring: A Critique of New “Ban the Box” Studies

Source: Maurice Emsellem, Beth Avery, Policy Brief, August 11, 2016

From the summary:
Two recent studies claim that “ban the box” policies enacted around the country detrimentally affect the employment of young men of color who do not have a conviction record. One of the authors has boldly argued that the policy should be abandoned outright because it “does more harm than good.” It’s the wrong conclusion. The nation cannot afford to turn back the clock on a decade of reform that has created significant job opportunities for people with records. These studies require exacting scrutiny to ensure that they are not irresponsibly seized upon at a critical time when the nation is being challenged to confront its painful legacy of structural discrimination and criminalization of people of color.

Our review of the studies leads us to these top-line conclusions: (1) The core problem raised by the studies is not ban-the-box but entrenched racism in the hiring process, which manifests as racial profiling of African Americans as “criminals.” (2) Ban-the-box is working, both by increasing employment opportunities for people with records and by changing employer attitudes toward hiring people with records. (3) When closely scrutinized, the new studies do not support the conclusion that ban-the-box policies are responsible for the depressed hiring of African Americans. (4) The studies highlight the need for a more robust policy response to both boost job opportunities for people with records and tackle race discrimination in the hiring process—not a repeal of ban-the-box laws. ….

…..In recent months, two studies evaluating the impact of ban-the-box policies have been released—both making the controversial claim that the policies have a detrimental impact on young African-American men. One of the researchers concludes that the policy should be abandoned because it “does more harm than good.” The two studies at issue were authored by Amanda Agan and Sonja Starr (“Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment”) and Jennifer Doleac and Benjamin Hansen (“Does Ban the Box Help or Hurt Low-Skilled Workers? Statistical Discrimination and Employment Outcomes When Criminal Records Are Hidden”).4 A third recently released study by Daniel Shoag and Stan Veuger (“No Woman, No Crime: Ban the Box, Employment, and Upskilling”) presents a range of findings on the impact of ban-the-box policies in geographic areas with high crime rates…..
Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment
Source: Amanda Agan & Sonja Starr, University of Michigan Law & Economics Research Paper, No. 16-012, June 14, 2016

Does Ban the Box Help or Hurt Low-Skilled Workers? Statistical Discrimination and Employment Outcomes When Criminal Records Are Hidden
Source: Jennifer Doleac & Benjamin Hansen, July 2016

No Woman, No Crime: Ban the Box, Employment, and Upskilling
Source: Daniel Shoag & Stan Veuger, American Enterprise Institute, AEI Economics Working Paper, 2016-08, May 25, 2016

Ban the Box and Perverse Consequences, Part III

Source: Noah Zatz, OnLabor blog, August 4, 2016

This is the final post in a three-part series.

This is the last in a series of three posts on the prominent perverse consequences argument against “Banning the Box.” The argument is that efforts to curtail employer exclusion of people with criminal records inadvertently exacerbate the racial inequality they purport to redress. The first post argued that Ban the Box should not be blamed for an effect rooted in employers’ racial stereotyping; the second criticized the perverse consequences argument for using the wrong conception of racial equality. This one criticizes it for ignoring cumulative effects when identifying and comparing racial harm.

Overqualified: Changing the Culture of Hiring Practices in a Public Library Special Collections Department

Source: Eddie Woodward, Public Library Quarterly, Volume 35, Issue 2, 2016
(subscription required)

From the abstract:
All too often, applicants for low level paraprofessional positions in libraries are passed over or rejected, not because they are not qualified, but because they have professional experience or advanced degrees. The rationale behind these decisions is that the overqualified staff member in a low level position will continue to look for a better position more aligned with their skills, experience, and education; and when they find another job they will leave and their positions will have to be filled again. This essay argues that this reasoning is flawed and, regardless of the perceived inconvenience, library managers and administrators should want the best and the brightest working in all levels of their library.

Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment

Source: Amanda Agan, Sonja Starr, Princeton University, Industrial Relations Section Working Paper #598, July 2016

“Ban-the-Box” (BTB) policies restrict employers from asking about applicants’ criminal histories on job applications and are often presented as a means of reducing unemployment among black men, who disproportionately have criminal records. However, withholding information about criminal records could risk encouraging statistical discrimination: employers may make assumptions about criminality based on the applicant’s race or other observable characteristics. To investigate this possibility as well as the effects of race and criminal records on employer callback rates, we sent approximately 15,000 fictitious online job applications to employers in New Jersey and New York City, before and after each jurisdiction’s adoption of BTB policies. Our causal effect estimates are based on a triple-differences design, which exploits the fact that many businesses’ applications did not ask about records even before BTB and were thus unaffected by the law. Our results confirm that criminal records are a major barrier to employment, but they also support the concern that BTB policies encourage statistical discrimination on the basis of race. Overall, white applicants received 23% more callbacks than similar black applicants and employers that ask about criminal records are 62% more likely to call back an applicant if he has no record. However, we find that the race gap in callbacks grows dramatically at the BTB-affected companies after the policy goes into effect. Before BTB, white applicants to BTB-affected employers received about 7% more callbacks than similar black applicants, but BTB increases this gap to 45%.

Ban the Box: Protecting Employer Rights While Improving Opportunities for Ex-offender Job Seekers

Source: C. W. Von Bergen and Martin S. Bressler, Employee Relations Law Journal, Vol. 42 no. 1, Summer 2016
(subscription required)

A number of state and local jurisdictions, and more recently federal officials, have initiated statutes aimed at minimizing the obstacles encountered by ex-offenders in securing employment. Such policies, often referred to as “Ban the Box” legislation, attempt to ameliorate the deleterious effect that criminal history screening often has on such individuals’ ability to secure employment. The “box” in Ban the Box refers to the question on many employment applications asking if the job applicant has a criminal conviction. Such ordinances are focused at the point of the application process, only allowing potential employers to query individuals seeking employment about their convictions when they obtain an offer of conditional employment or when they reach the ranks of final consideration. Even then, it is a typical requirement that potential employers link necessity of a criminal screening with the nature of the job. This article discusses Ban the Box, its history, the risks these laws pose to employers, and strategies for firm compliance.