Category Archives: Employment Screening

Drug Testing Of Medical Marijuana Users In The Workplace: An Inaccurate Test Of Impairment

Source: Stacy A. Hickox, Hofstra Labor & Employment Law Journal, Volume 29, No. 2, Spring 2012

Part I of this article provides an overview of the sixteen existing medical marijuana statutes as well as the numerous bills pending across the United States. Most medical marijuana statutes do not provide direct protection against discrimination in hiring or discharge from employment. Yet most of these statutes do specify that an employer need not accommodate a medical marijuana user who uses at work or is intoxicated at work. This raises two important questions. First, does an employer have an obligation to accommodate a medical marijuana user who only uses outside of work, particularly if the person is protected against discrimination based on a disability? Employers have argued that the term “use” at work could include testing positive on a drug screen, even though an employee can test positive days or weeks after the ingestion of marijuana.

Yet the duty to accommodate could also mean that a medical marijuana user who does not ingest marijuana at work, and is not intoxicated or under the influence at work, should be entitled to accommodation like any other person with a disability. The second difficult question raised by these provisions is how to determine if a medical marijuana user is intoxicated or under the influence at work. In Part II of this article, the research on the effects of marijuana use will be reviewed. Although the research points out qualities associated with marijuana use that may also affect job performance, these effects vary considerably across users depending on the frequency and level of use as well as the personal characteristics of the user. Moreover, this research does not provide clear guidance for employers or courts regarding when a medical marijuana user should be protected against discharge based on intoxication or impairment at work.

Part III of this article considers whether drug testing should be used to determine when an employee or applicant is intoxicated or impaired. There are several reasons it should not, beginning with the lack of relationship between a positive drug test and actual impairment. In addition, many states lack requirements as to how drug tests should be administered, which allows for inaccurate and inappropriately interpreted results. As an alternative, impairment testing can give clearer indication of whether an employee is actually fit to work. Parts IV and V of this article demonstrate how a standard for determining intoxication or impairment can be developed from both criminal law and workers’ compensation law. These long-standing methods should assist both employers and courts in addressing the dilemma of what to do with a medical marijuana user who has not engaged in illegal activity, but faces discharge or rejection in the application process, even though he or she has never been under the influence of marijuana at a time when work would be affected….

Civil Service Reform a Concern for Many

Source: Amanda Cuda, HR News Vol. 78 no. 8, August 2012
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A great amount of attention has been paid recently to how public sector employees are hired, fired, rewarded and disciplined. The loudest discussions on these topics have, arguably, focused mainly on collective bargaining. In Wisconsin, Gov. Scott Walker’s approval of legislation that severely limited the collective bargaining rights of most of the state’s government workers led the state to hold a recall election. The recall was unsuccessful and Walker remains in office. Yet that hasn’t silenced the ongoing discourse about how public employees are treated. And, in many circles, the talk has shifted from collective bargaining to civil service reform efforts.

These initiatives – which, in many cases, change the way workers are hired and fired – have become a hot button issue as several states have moved to revamp their personnel guidelines.

Tennessee, Arizona and Colorado have all passed civil service reforms in the past year. In many cases, these reforms don’t affect government workers on the city level, and mostly apply to state workers. But some city governments – including Nashville, Tenn.- are also considering their own personnel reforms. …

A Hopeful Outlook on Privacy Rights for Public Sector Employees

Source: Alan M. Klinger, Stroock Reports – Public Employee Law, Summer 2012
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The mantra is often repeated that public employees have a greatly diminished privacy interest while on the job. Recent events brought renewed focus on the scope of such rights, possibly evidencing (even in the face of an adverse decision) a shift in how these rights will be viewed going forward. First, this article discusses the controversy sparked by the publication of Teacher Data Reports (“TDRs”) by the Board of Education of the City School District of the City of New York (“BOE”), and the recent willingness of state representatives and courts to consider the privacy interest of public employees in policy decisions. It will also address American Federation of State County and Municipal Employees (” AFSCME”) Council 79 v. Scott, a recent Florida case where a federal judge struck down – as a Fourth Amendment violation – a program that would have required many state employees to undergo random drug testing.

Update on Complying with Nondiscrimination Provisions: Criminal Record Restrictions and Disparate Impact Based on Race and National Origin

Source: Jane Oates, Naomi Barry-Perez, U.S. Department of Labor, Employment and Training Administration, Training and Employment Guidance Letter (TEGL), No.31-11, May 25, 2012

From the summary:
The purpose of this Training and Employment Guidance Letter (TEGL) is to provide information about exclusions based on criminal records, and how they are relevant to the existing nondiscrimination obligations for the public workforce system and other entities (including the “covered entities” listed above) that receive federal financial assistance to operate Job Banks, to provide assistance to job seekers in locating and obtaining employment, and to assist employers by screening and referring qualified applicants. As explained in this TEGL, restrictions based on criminal history records may have a disparate impact on members of a particular race or national origin, in violation of federal antidiscrimination laws. This guidance is being issued by the Employment and Training Administration (ETA), in conjunction with the Civil Rights Center (CRC).

Govt. agencies, colleges demand applicants’ Facebook passwords

Source: Bob Sullivan, MSNBC, Red Tape blog, March 6, 2012

If you think privacy settings on your Facebook and Twitter accounts guarantee future employers or schools can’t see your private posts, guess again.

Employers and colleges find the treasure-trove of personal information hiding behind password-protected accounts and privacy walls just too tempting, and some are demanding full access from job applicants and student athletes.

In Maryland, job seekers applying to the state’s Department of Corrections have been asked during interviews to log into their accounts and let an interviewer watch while the potential employee clicks through wall posts, friends, photos and anything else that might be found behind the privacy wall.

Previously, applicants were asked to surrender their user name and password, but a complaint from the ACLU stopped that practice last year. While submitting to a Facebook review is voluntary, virtually all applicants agree to it out of a desire to score well in the interview, according Maryland ACLU legislative director Melissa Coretz Goemann….
See also:
Can Interviewers Insist on ‘Shoulder Surfing’ Your Facebook Page?
Source: Martha C. White, Time, Moneyland, March 9, 2012
Want A Job? Password, Please!
Source: Meredith Curtis, ACLU of Maryland, February 18, 2012

Workplace Privacy and Monitoring: The Quest for Balanced Interests

Source: Ariana R. Levinson, Cleveland State Law Review, Vol. 59, No. 3, 2011

From the abstract:
This article describes some of the difficulties for employers and employees resulting from advancing technology. It briefly describes some of the technology available to employers with which to monitor employees. The article then provides an overview of the primary sources of law governing employer monitoring and employee privacy, such as the Electronic Communications Privacy Act, state statutes providing for notice of monitoring or protection of the integrity of personnel records or lawful off-duty activity, the tort of invasion on seclusion, and the Fourth Amendment. The article concludes by offering suggestions for attorneys who represent employers, employees, or unions and are interested in addressing these issues. Attorneys and their clients can advocate for federal or state legislation, address these issues in collective bargaining or through private policies, or become involved in educational efforts.

Tattoos and Body Piercings: New Terrain for Employers and Courts

Source: Jon D. Bible, Labor Law Journal, Vol. 61 no. 3, Fall 2010
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Recent years have seen an increasingly large segment of society opt to adorn itself with all manner of tattoos and body piercings…. Because most of these people are, or will be employed, employers must decide what stance to take regarding this phenomenon. Should they turn a blind eye, on the theory that how one presents herself to the world is her business> Or are they within their legal rights to ban this art if they believe it will either negatively affect the workplace atmosphere, or so offend their customers that their business will suffer?

Using the Internet to Conduct Background Checks on Applicants for Employment

Source: Diane M. Juffras, University of North Carolina at Chapel Hill School of Government, Public Employment Law Bulletin, no. 38, October 2010

From the summary:
This bulletin discusses the legal issues that North Carolina public employers should consider before they use the Internet to conduct or supplement background checks of prospective employees.

Workers’ Comp Screening Has Its Risks as Well as Rewards

Source: Fay Hansen, Workforce Management Online, September 2010

While background screening firms are adding workers’ comp checks alongside drug testing, credit reports and court records, collecting information on injuries and claims could expose companies to legal risks, including ADA compliance issues.

ith a prolonged hiring slump still dogging many industries, employment screening vendors are expanding their offerings and promoting new services to boost business. A number of vendors, such as LexisNexis, HireSafe and TalentWise, now include a review of workers’ compensation claims to their list of tools that employers can select to screen job candidates.

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
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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.