Category Archives: Employment Screening

The Unintended Impact of New Jersey’s New Medical Marijuana Law on the Workplace

Source: Amy Komoroski Wiwi and Nicole P. Crifo, Employee Relations Law Journal, Vol. 36 no. 1, Summer 2010
(subscription required)

With the enactment of the New Jersey Compassionate Use Medical Marijuana Act, New Jersey employers are faced with new challenges in the workplace. This article addresses these challenges and provides guidance for employers dealing with employees who are using marijuana for certain debilitating medical conditions.

Major U.S. Cities and Counties Adopt Hiring Policies to Remove Unfair Barriers to Employment of People with Criminal Records

Source: National Employment Law Project, January 10, 2010

Urban areas across the United States (including Austin, Baltimore, Boston, Chicago, Minneapolis, San Francisco, and St. Paul) have limited discrimination in city and county jobs against people with criminal records. As Mayor Richard Daley explained when he announced Chicago’s new hiring policy, “Implementing this new policy won’t be easy, but it’s the right thing to do. . . . We cannot ask private employers to consider hiring former prisoners unless the City practices what it preaches.”

A Lower “Salt” Content for Employers

Source: Katie A. Mabanta, Alyson B. Skloot, Hofstra Labor & Employment Law Journal, Volume 26, No. 1, Fall 2008

This Note argues that recent NLRB decisions such as Oil Capitol II have not only altered the law in this field, but have also had the effect of putting employers in a more economically favorable position. Part II provides a brief history on the unionization technique of salting, defines the role and characterization of salts, and distinguishes the use of this technique in the construction industry. Part III discusses the law establishing “union salts” as protected “employees” under the NLRA. Part IV describes the Wright Line test used by the NLRB to determine whether the General Counsel has established a prima facie case that the employer has committed an unfair labor practice. Part V examines the remedies issued by the NLRB in hiring discrimination cases, i.e., backpay. Part VI provides a synopsis of the Oil Capitol II holding, specifically in regards to the new evidentiary standard set forth with respect to the establishment of backpay remedies. Further, this section addresses the dissenting Board members’ opinions. Part VII argues that because of Oil Capitol II and its progeny, employers will inevitably discriminate against union salts. Part VIII discusses the possible effect that Oil Capitol II will have on the investigative and litigation strategies of the General Counsel. Part IX includes both cases spawning from Oil Capitol II and cases issued subsequently to Oil Capitol II, which used its newly established framework. Part X provides a political analysis of the impact of these decisions on the NLRB and the workforce. This Note concludes, that these law-changing decisions have not only assisted employers, but will potentially cause unions to rethink their usage of salts as a unionization method.

Private Immigration Screening in the Workplace

Source: Stephen Lee, Stanford Law Review, Volume 61, Issue 5, 2009

For over twenty years, our immigration laws have required employers to screen their workforces for “unauthorized” immigrants. But rather than punish employers for failing to carry out these duties, the Department of Homeland Security (DHS) has worked with employers to identify unauthorized workers for removal–even where it is abundantly clear that employers are reporting the very workers they unlawfully hired in the first place, and are doing so to retaliate against workers who assert labor and employment rights. How can a law that was designed to punish employers be used to reward them? This Article attempts to explain this counterintuitive result. Although the DHS-employer relationship appears to be contentious and antagonistic, that relationship can often be highly collaborative and mutually beneficial, where the DHS overlooks employer indiscretions in exchange for help identifying potentially removable immigrants. In this way, employers resemble other immigration screeners, like airport inspectors and state and local law enforcement officers, who assist the DHS by winnowing down to a manageable size the pool of potentially removable immigrants. This Article therefore argues that employers should be regulated as screeners where employers should be punished for using their screening authority beyond the scope of its intended use, which often means employers using reporting and the threat of reporting to avoid liability for labor and employment violations. Thus, while our immigration laws contemplate punishing employers at the front end for who they hire, this Article argues our laws should also punish employers at the back end for who they report. As one set of remedies, this Article proposes subjecting employers to possible audits if they report workers to the DHS, and applying the exclusionary rule against complicit immigration officials.

Putting a Big Chill on a “Big Hurt:” Genuine Interest in Employment of Salts in Assessing Protection Under the National Labor Relations Act

Source: Jeffrey A. Mello, Employee Responsibilities and Rights Journal, Published online: 25 July 2008

(subscription required)

From the abstract:

As union membership has continued to decline steadily in the US, union organizers have become more creative and vigilant with their organizing strategies. Chief among these strategies has been “salting,” a process by which unions attempt to organize employees from the inside rather than the outside. The Supreme Court has ruled that, under the National Labor Relations Act, “salts” cannot be discriminated against solely on the basis of their status as salts. This paper examines employer responses to resist salting efforts, including a recent decision by the National Labor Relations Board, which redefines the landscape under which salting activities can be conducted and considered protected activity.

NCSL 50-State Legislative Tracking Web Resources

Source: National Conference of State Legislatures, June 2008

At the request of NCSL’s Legislative Research Librarians (LRL) staff section, NCSL has developed this resource of 50-state compilations covering various issues that concern state legislators and legislative staff. Here you will find a topical, alphabetical listing of legislative and statutory databases, compilations and state charts/maps.

[NOTE: Some of these tracking services are currently out of date. PLEASE NOTE THE DATE of the item you are reviewing].

Labor & Employment

At-Will Employment
Day Laborer Laws (statutes)
Drugtesting in the Workplace
State Divestment Legislation
Equal Pay (statutes and legislation)
Family/Medical Leave Laws (statutes)
Living Wage (legislation)
Medical Donar Leave Laws (statutes)
Minimum Wage Laws (legislation and chart)
Minors – Employment Laws (statutes)
Non-compete Agreements (statutes)
Overtime Laws (statutes)
Sick Leave Laws (statutes)
Telecommuting (statutes and legislation)
Whistleblowers (statutes)
Workforce Development (legislation and resources)

Working Partners for an Alcohol- and Drug-Free Workplace

Source: U.S. Department of Labor
National Resources
Drug-free workplace programs do more than just rid the workplace of alcohol and other drugs they significantly contribute to the creation of alcohol- and drug-free families, schools and communities. A number of national organizations may provide assistance in learning about workplace substance abuse issues and developing drug-free workplace programs.
[This site LINKS to the key organizations in the U.S.]

Note: Drug-Free Work Week will be October 20-26, 2008

Psychological Testing in Personnel Selection, Part I: A Century of Psychological Testing

Source: Wesley A. Scroggins, Steven L. Thomas and Jerry A. Morris
Public Personnel Management, Spring 2008

This article is the first in a three-part series that examines the development of selection testing. Part I focuses on the historical development of personnel selection testing from the late 19th century to the present, with particular attention given to personality testing. Attention is given to the efforts of early industrial psychologists that shaped and defined the role of testing in the scientific selection of employees. Part II examines the development of methods and standards in employment testing with particular emphasis on selection validity and utility. Issues of selection fairness and discrimination in selection are explored as they relate to psychological testing. Part III explores the development and application of personality testing. The transient nature of models of personality is noted, and current paradigms and the utility and fairness of personality testing for modern organizations are discussed.

Human Resources Flexibilities and Authorities in the Federal Government

Source: Office of Personnel Management, January 2008

From the summary:
This page includes the updated and expanded Handbook titled, Human Resources Flexibilities and Authorities in the Federal Government. The Handbook is a practical guide to the options available in current law to help you recruit and hire a diverse and high performing workforce, set a strategic direction through workforce planning and organizational realignment, and unleash the potential of your organization. OPM encourages you to use these existing flexibilities to strategically align your human resources management systems with your mission. You may be surprised to discover how flexible title 5 is in meeting your organizational needs.