Category Archives: Employment Screening

The Ethics of Not Hiring Smokers

Source: Harald Schmidt, Kristin Voight, and Ezekiel J. Emanuel, New England Journal of Medicine, Vol. 368 no. 15, April 11, 2013

Twenty-nine U.S. states have laws prohibiting employers from refusing to hire job candidates because they smoke, but 21 states have no such restrictions.
See also:
Conflicts and Compromises in Not Hiring Smokers
Source: David A. Asch, Ralph W. Muller, and Kevin G. Volpp, New England Journal of Medicine, Vol. 368 no. 15, April 11, 2013

Unemployed (and Black) Need Not Apply: A Discussion of Unemployment Discrimination, Its Disparate Impact on the Black Community, and Proposed Legal Remedies

Source: Jasmine A. Williams, Howard Law Journal, Vol. 56 no. 2, Winter 2013
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…Discrimination against the unemployed is having a negative impact on the job-seeking community in general. However, it is having an extremely adverse impact on the black community. There are many proposed solutions to this problem, although few propose to address the effect of the practice in the black community. These several prominent proposed remedies can be divided into two categories: private suits and legislative remedies. Private suits describe the proposal to create a cause of action that would allow applicants to bring lawsuits for discrimination based on unemployment status. Legislative remedies refer to proposed remedies such as hiring tax incentives and government-sponsored work training programs.

This Comment argues that a private cause of action is an inadequate and unrealistic remedy to address the problem of unemployment discrimination. Part I discusses the nature of the problem as it pertains to the black community. Part II describes the proposed private cause of action remedy, the history of employment discrimination, the approach courts have taken in response to this issue under Title VII, and the application of Title VII standards to a proposed cause of action for discrimination based on unemployment status. Part III discusses legislative proposed remedies and their viability. Part IV addresses some of the qualities necessary for an appropriate remedy. Lastly, Part V summarizes the remedies discussed and their potential for success…

Electronic Employment Eligibility Verification

Source: Andorra Bruno, Congressional Research Service, CRS Report for Congress, R40446, March 19, 2013

The 113th Congress is expected to take up comprehensive immigration reform. Some of the most difficult immigration policy questions on the table concern unauthorized immigration and unauthorized employment. Today’s discussions about these issues build on the work of prior Congresses. In 1986, following many years of debate about unauthorized immigration to the United States, Congress enacted the Immigration Reform and Control Act (IRCA). This law sought to address unauthorized immigration, in part, by requiring all employers to examine documents presented by new hires to verify identity and work authorization and to complete and retain employment eligibility verification (I-9) forms. Ten years later, in the face of a growing illegal alien population, Congress attempted to strengthen the employment verification process by establishing pilot programs for electronic verification, as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).”

Employer Access to Social Media Usernames and Passwords: 2012 Legislation, Year-end summary

Source: National Conference of State Legislatures, January 17, 2013

Increasing numbers of Americans use social media, both on and off the job. Recently, some employers have asked employees to turn over their username or passwords for their personal accounts. Some employers argue that access to personal accounts is needed to protect proprietary information or trade secrets and to prevent the employer from being exposed to legal liabilities. But others consider requiring access to personal accounts an invasion of employee privacy. State legislators introduced legislation beginning in 2012 to prevent employers from requesting passwords to personal Internet accounts—including email, banking and social networking sites—in order to get or keep a job. Some states have similar legislation protect students in public colleges and universities from having to grant access to their social networking accounts. …

Smokers Need Not Apply: Hiring Bans in the Public Sector

Source: Heather Kerrigan, Governing, Public Workforce newsletter, January 16, 2013

…Virginia is one of about 29 states plus the District of Columbia with laws preventing “lifestyle discrimination” in the workplace, while the other 21 other states have free reign to explore their options when it comes to cutting health-care costs. … Banning certain subsets of people from employment isn’t a new concept … but the growing number of employment bans on smokers has raised questions about whether the practice is discriminatory. The answer is two-fold: Federal law specifies the factors that employers aren’t allowed to use to refuse hiring someone — such as age, race, disability and gender — and smokers aren’t considered a protected class. On the other hand, there are the 29 states plus the District of Columbia that ban lifestyle discrimination, but some of these laws allow hiring bans on smokers for certain jobs like those in the public safety and nonprofit industries. …

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).