Ask the Screener: October, 2009

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Here at EmployeeScreenIQ, we answer hundreds of questions every day for HR professionals regarding a variety of topics: criminal records, verifications, drug testing, court research, I-9 verifications, etc. What we find is that many of our clients, whether Fortune 100 organizations or small family owned businesses, have many of the same questions when it comes to conducting background checks and making hiring decisions. Therefore, we thought that we would address some of the questions we see on a regular basis so that all of our clients may benefit. These might be cases here where you say “Oh, I already knew that!” or there may be situations where you think “Hmm…I never thought of that!” Either way, our hope is that this column will demonstrate how we are here to help.

Question:

When it comes to criminal records, what is the best way to determine who I should and shouldn’t hire?

Answer:

There really is no hard and fast rule that employers collectively follow when it comes to denying employment based on a candidate’s criminal history, nor should there be. Employers should evaluate each criminal record on an individual basis to ascertain whether the candidate qualifies for employment. EmployeeScreenIQ recommends asking the following questions when evaluating a candidate’s criminal record:

1. How long ago did the conviction take place?

2. How serious is the offense?

3. Does the nature of the crime impact the candidate’s ability to do the job?

4. Is the person a repeat offender?

5. Has the candidate stayed out of trouble since the conviction occurred?

Should there still be uncertainty regarding suitability for employment after answering these questions, we recommend that employers work with their legal department to determine the best course of action.

Question:

What do I need to do when I decide not to hire someone based on the results of their background check?

Answer:

The Fair Credit Reporting Act (FCRA) states that employers must follow specific adverse action procedures when denying someone employment based on the results of his or her background check. Employers must first send a notice (Pre-Adverse Action Letter) to the candidate indicating that a background check was conducted and include a copy of the background check along with a copy of “A Summary of Your Rights under the Fair Credit Reporting Act.” This allows the candidate to identify any inaccuracies in the report and dispute it directly with the Consumer Reporting Agency (CRA).

Once the initial notification has been sent and after allowing sufficient response time, the employer can then proceed to take adverse action. Employers must send a follow up notification (Adverse Action Letter) to the candidate indicating that they have decided not to offer them a position with their company due to the results of the background check. Within this notification, the employer must disclose the contact information for the CRA who conducted the background check and explain that the CRA did not take the adverse action against them and cannot provide any details regarding why the adverse action was taken. The employer must also notify the candidate of their right to obtain a free copy of their report and dispute the accuracy of the results.

In addition to denial of employment, employers must follow adverse action procedures when terminating a current employee or denying them a promotion with their company based on the results of a background check.

Some states have more stringent adverse action processes that must be followed for residents of their states. For information regarding any special adverse action procedures in your state, we recommend contacting your legal department for this information.

Samples on a Pre-Adverse and Adverse Action Letters can be found at EmployeeScreenIQ’s Resources Page.

Question:

I have heard there are products aimed to help people mask drugs in their system. How easy is it for my candidate to cheat a urine drug test?

Answer:

Simply put: not very! Collections sites, labs and medical review officers have numerous safeguards in place to make sure a donor has little to no opportunity to skew the results. Here’s a breakdown of those safeguards:

Collection sites: Before entering the room in which they will provide their specimen, donors must empty their pockets and leave any purses, backpacks, coats etc. in the waiting room. This practice minimizes the risk of the donor bringing in any type of dilution or masking agent and adding it to their specimen. Within the room itself, blue dye is added to toilet water and hand sinks are not present so donors are not able to dilute their specimen with water. Once the specimen has been provided, collection site personnel record the temperature to ensure it is fresh and seal the specimen container for transport.

Labs – When the specimen is received by the laboratory, the first thing they do is test the PH level of the specimen to make sure it is consistent with human PH levels. They also run tests to see if any adulterant has been added to the specimen in order to modify the results.

Medical Review Officer (MRO) – Should a result turn up positive, the MRO will check with the donor to see if he or she is on any medication that may affect the results of the test. Should the donor indicate he or she is taking a prescribed medication, the MRO will not accept this claim at face value. The donor is required to provide proof to the MRO that this medication has been prescribed to them by either providing a copy of the written prescription or a note from their pharmacy or doctor.

So, as you can clearly see, trying to circumvent the drug testing process is no easy task. I won’t go as far to say that it has never been done but I’m pretty confident employers have little to worry about.

If you would like to submit a question to “Ask the Screener”, please send an email to info@employeescreen.com. All names and companies will be kept confidential.

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