Employee Screening: Hear No Evil, See No evil, Pay the Consequences

Employee ScreeningHear No Evil, See No Evil: Pay the ConsequencesLimiting liability while enhancing safety and productivity

Employee Screening

Drug & Alcohol Testing & Background ChecksDrug & Alcohol Testing

Substance Abuse in the WorkplaceCost to business - $1 billion a year500 million workdays lost annually75% of adult illicit drug users & 80% of heavy or binge drinkers are employed More than 60% of adults know people who have worked under influence of drugs or alcohol19 million people in US currently use illegal drugs.

Key Metrics Impacts ofEmployee Drug and Alcohol Use Turnoversubstance abusers change jobs as often as 3 times per year Productivitysubstance abusers are 33% less productive than peersSHRM found organizations starting drug and alcohol testing see a 19% increase in productivityKey Metrics ContAbsenteeismsubstance abusers are 2.5 times more likely to be absent for more than 8 days per yearWorkers Compensation Claimssubstance abusers can double the cost of workers compensation costs for employers

Idaho is a Red stateand were not just talking politics!

DEA and NFLIS 2006 Annual ReportBenefits of Drug & Alcohol TestingIncreasessafetybottom lineproductivityquality of workretentionreputationrecruitment

Decreasesrecruitment costsabsenteeismwork related injuriesWorkers Comp costsworkplace conflictshrinkage health care costsnegligent hiring claims

8Negligent HiringCaused by superficial screening & sloppy hiringLiability due to many types of behaviorviolencetheftharassmentfraudAverage settlement nearly 1 millionEmployers have lost 79% of cases

Why Pre-Employment Testing is Not EnoughThe positive rate from random tests is 47% higher than the pre-employment testing positive rate in general industry, according to Quest Diagnostics.

Federal Regulations SpecifyWho gets testedWhat gets tested When they get testedWhere they get testedWhy they get testedHow they get tested

When It All StartedReagans Executive Order 12564 (1986)Mandated a Drug Free Federal WorkforceEach agency to establish programSec. Health & Human Services (HHS)governs SAMHSAestablish scientific & technical test guidelinesspecify drugs for testing

Department of Transportation (DOT)(49 CFR, Part 40) DOT mandate 5-panel urine lab testMarijuanaOpiates (includes morphine, heroin)CocaineAmphetamines/MethamphetaminesMDMA (Ecstasy)Phencyclidine (PCP)NON-Mandated 5-panel testno Ecstasy urine, saliva or hair-instant or lab

Prescriptions Drugs2012 more over doses from prescription drugs than illicit drugsMRO asks for doctor and/or pharmacy informationNegative test if MRO verifies existence of medically necessary prescription and legal use of prescribed substance Deadline will be given for information maximum of five days

Idaho Employer Alcohol and Drug-Free Workplace Act (IC 72-1701 et seq)

Drug-Free Workplace Act

Governs private employers only*Purpose promote alcohol & drug free workplaceTests can be condition of employmentCompany bears costs Confirmation test requiredUnemployment denied if positive testPresumption & limitation of damages

Drug Free Workplace Act ContWritten policy required must includetermination possible if fail testlist types of testing to be usedemployee rights specifiedto explain test resultrequest re-test at lab within 7 dayspaid if re-test negative

What Constitutes a Positive TestSubstitution of specimenAlteration of specimenAttempt to alter or substituteFailure to appearFailure to remain at collection siteFailure to provide sampleRefusal to testRefuse second testProvide insufficient sample and refuse medical examObstruction of testing processRefuse direct observed test

Common Testing MethodsUrine - instantUrine - lab basedHair testSaliva - lab or instant Sweat testBreath alcoholbreathalyzerinstant

Best Practice is a Robust Testing ProgramPre-employmentBaselineRandomReasonable suspicion Post accidentReturn to dutyFollow-up

Idaho Workers Compensation Premium DeductionWith a full Drug Free Workplace Program, Idaho employers can receive up to 5% off of their annual Workers Compensation premium.

Supervisor Training Signs of Drug and Alcohol Use Best practiceManaging Substance Abuse in the WorkplaceFederal Law RequiresTraining required for reasonable suspicion testing

Supervisor Training Should IncludeCompany policyLaws of jurisdiction/industryHow to recognize substance abuseIndicators for reasonable suspicion What to do about itSteps to limit liability Documentation and discipline options

Reasonable SuspicionViolation of company policyQuestion of employee sobriety Indicators MUST be observed by supervisorphysical behavioralperformancedrug paraphernaliacombination

Drug Paraphernalia

Background ChecksBackground Checks are a good business decisionMore than one in four adults are estimated to have a criminal record46% of employment, education, and/or credential reference checks show discrepancies between applicant and source reports 11% of job applicants misrepresent why left prior employerMost Common Background ChecksSocial Security Number Validation Social Security Search - Name & Address History National Criminal Search National Sex Offender SearchCounty or State Criminal SearchMotor Vehicle RecordCreditEducation verification

Fair Credit Reporting Act (FCRA)Governs 3rd party consumer reports Some key requirementsconsumer reporting agencydisclosure & authorizationadvance notice - adverse actioncopy of rights under FCRAopportunity to dispute recordhandling & retention of information

Fair Credit Reporting Act (FCRA)Forms typically used in screeningSummary of Consumer Rights under FCRANotice to user of Consumer Reports of their Obligation under the FCRANotice to Furnishers of Information of their Obligation under the FCRAAll modified effective January 1, 2013More State and Federal RestrictionsState, county, city laws/rules8 states bar/restrict use of credit checksBan the Box - 19 states Convictions older than 7 years barred FCRA mandatoryEEOC advisoryExceptions for other federal lawsBank no convictions past 10 years

Best PracticesNo use of criminal histories as a per se bar to employmentUse EEOCs guidelines in use of criminal history in hiring decisionsNo questions of criminal convictions in applicationsOnly ask about criminal history when position where criminal history may be relevantLimit questions to convictions with nexus to job duties

EEOC Position on Criminal Background ChecksUse of conviction record may violate Title VII disparate treatment and disparate impact theories if employer intentionally and selectively enforce screening policy against protected class members

EEOC Position Cont If policy has disparate impact, policy must be job related and consistent with business necessityTitle VII pre-empts state law3.13M conciliation agreement with PepsiCo blacks excluded by criminal background check policy (2012)

EEOC GuidelinesRe-embraced three factors when evaluating criminal history nature & gravity of crimetime lapsed since conviction or completion of the sentence nature of job sought or heldMust use individualized assessmentMust give opportunity to give extenuating circumstances or errorEEOC Guidelines ContArrest recordscan not be sole reason to deny jobuse only if not banned by state lawuse conduct underlying recordmust render person unfit for positione.g. school bus driver arrested for DUI

Social Media SearchesTread carefullyuse of prohibited information may violate federal & state discrimination lawsage, religion, disability etc.evidence in discrimination claim

NLRB Social MediaUnder NLRB guidelines employees can discuss wages and work conditions without repercussions Deemed concerted activity

Vendor Selection Testing & Background Checks

Single source24/7 availability if appropriateGuidance and coaching availableKnowledgeable of federal & state lawsSupports clients complianceUpdates on laws and regulationsNational services

Testing Vendor Criteria Take responsibility off your plateManage drug/alcohol test program Interface with employeesProvide MRO servicesCost effectiveHandle lab, results, testing suppliesManage random test programProvide mobile & certified collectorsIn-House Program Risk - TestIncreased liability, responsibility, timeEvaluate/select labs and MROEvaluate test devices/methodsTrain/certify collectorsCalibrate equipmentScientifically valid random programCompliance with federal and state lawsProcedure for positive testsInterface with employeePotential claims of discrimination

Background Check VendorLicensed Consumer Reporting AgencyLarge, accurate, updated data basesAbility to search nationallyWorking knowledge of FCRARequired documentsVerifications Knowledge of related lawsTurn-around timeWeb-basedConfidentiality

In-House Program Risks - BGSIncreased liability, responsibility, timeInaccurate data bases No national data baseProcedure to research & correct recordsCompliance with state and federal lawsCostSlower turn around time

Q & A

This presentation contains the opinions of the presenters and does not constitute legal advise.

Kail Q, Seibert, JD Susannah Arnim, SPHRkqs@aheaofothekurve.com sarnim@aheadofthekurve.com

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