This newsletter is sent to clients of Employment Screening Resources (ESR), as well as employers, Human Resources and Security professionals, and law firms who require information on pre-employment screening, safe hiring, the FCRA and legal compliance. If this was sent in error, you can be removed from this mailing by using the â€œremove” feature at the end of the newsletter.
Alert: ESR joins all Americans in extending our thoughts and concerns to all affected by Hurricane Katrina. A number of county courts in parts of Louisiana, Mississippi, Alabama and Florida have been affected. For employers hiring in jurisdictions with searches affected by Katrina, ESR will closely monitor the situation. In the meantime, employers can consider making conditional job offers contingent upon the completion of searches in counties that are currently unavailable or delayed.
Click here for upcoming HRCI certified workshops in the Bay Area. The workshop is free and attendees will receive 1.25 hours of Continuing Education credit!
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September 2005 Vol. 5, No. 9
Employment Screening Resources (ESR) Newsletter and Legal Update
California employers who utilize drug testing received some clarification in September from the Third District Court of Appeals on the rights of employers dealing with job applicants who test positive for marijuana and have a medical recommendation to use marijuana under the California Compassionate Use Act.
According to the courtâ€™s opinion, a job applicant in California had a physicianâ€™s recommendation for marijuana use for chronic back injury under the California Compassionate Use Act (Heath and Safety Code section 11362.5) That California law provides that certain criminal statutes concerning marijuana use in California shall not apply to ill persons who utilizes marijuana for medicinal purposes upon the advice of a physician. However, such use is not recognized under federal law.
The applicant provided the employer with a copy of his physicianâ€™s written recommendation regarding the use of marijuana. The applicant then took a drug test for employment purposes. The drug test showed that he tested positive for the main chemical found in marijuana. The applicant, who had already started working, was suspended due to the drug test and then terminated. The applicant argued that the use of marijuana for medical reasons did not impair his ability to perform the job satisfactorily. The applicant sued for discrimination on the basis that that the California Fair Housing and Employment Act (FEHA) prohibits employment discrimination on the basis of a medical condition where the applicant is able to fulfill his or her essential duties with a reasonable accommodation.
In reaching the decision, the Court assumed that the applicant had a valid need for the medical marijuana and that the applicant could perform the job if the employer accommodated him by allowing him to utilize marijuana. However, the Court ruled that the use of marijuana was still illegal under federal law and the California discrimination laws did not compel the accommodation of medical marijuana usage in the workplace. As a result, an employer cannot be compelled to accommodate a medical marijuana user if they choose not to.
While recognizing that California law provides protection to medical marijuana users, the Court also noted that employers have an interest in who they hire. The court noted that, â€œHiring of a new employee frequently represents a considerable investment on the part of the employer.â€ The Court also noted â€œwell documented problems that are associated with the abuse of drugs and alcohol by employeesâ€”increased absenteeism, diminished productivity, greater health cost, increased safety problems and potential liability to third parties, and more frequent turnoverâ€¦â€
The court also indicated that employers faced practical problems. Allowing marijuana use in the workplace could potentially cause certain employers to be in violation of federal Drug-Free Workplace rules. Also, it can create challenges for employers to determine the validity and legitimacy of the employeeâ€™s use since unlike prescription drugs which are regulated, the California law only requires a physicianâ€™s oral recommendation. The Court noted that further legislative clarification is needed in this area.
The case is Ross v. Rafingwire Telecommunications, Inc. (Third District Court of Appeal, September 7, 2005) (2005 Cal.App. LEXIS 1407)
ESR clients, Employers and HR and Security consultants may obtain a copy of the case by contacting Jared Callahan at [email protected] or 415-898-0044 ext. 240.
A common concern for employers is locating past employees to make a distribution from a pension, profit sharing or stock bonus plan that has been terminated and where the past employee is entitled to a distribution. Background screening firms are often called upon to assist in locating last known addresses.
The Internal Revenue Service (IRS) has a program available to employers to assist in locating past employees for these purposes. The IRS limits this service to 49 searches or fewer in a 12-consecutive month period, and does not charge a fee.
The program is set forth at the IRS web site at: http://www.irs.gov/retirement/article/0,,id=110139,00.html
The IRS does not give the employer the past address but will forward an appropriate letter. An employer must advise the IRS why such assistance is needed, as well as provide the past employeeâ€™s name, social security number and last known address, if available.
The letter being sent must be three pages or less, and advise the past employee why the letter is being sent, instructions on how to contact the sender and a statement that any reply is voluntary only and that the IRS is only forwarding the letter and has no involvement in the matter.
For employers who need to contact more than 49 past employees, screening firms are able to utilize pubic records and databases to help provide contact information. Contact ESRâ€™s Jared Callahan at 415-898-0044 Ext. 240 for more information or email him at [email protected]
A new law in Florida enacted this year to protect children from sex offenders has created considerable confusion due to requirements requiring criminal screening for workers visiting a school campus. School officials, contractors and private employers who work with schools have been burdened with expensive fingerprint checks required for each school district, leading to expensive repetitive background checks.
The law, which went into effect September 1, 2005, is known as the Jessica Lunsford Act, named after a 9-year old Florida child that was killed after being abducted from her home.
Florida Governor Jeb Bush has told reporters in Florida that the intent of the law was good, but that it needs to be implemented in a way that does not create a higher burden that is ultimately passed on to school districts. Several solutions are under consideration.
The Florida Department of Law Enforcement also announced last week that it would develop software that will allow school districts to share information.
ESR was featured in two prominent national publications recently. The August 2005 edition of SHRM HR Management carried an article â€œThe Nexus of Ethics,â€ examining the impact of ethical behavior off the job to job-related situations.
The articles contained the following quotes from ESR President Les Rosen:
â€œA lot of behavior that an academic or a philosopher might rely upon [in assessing a personâ€™s character] is just illegal to rely upon in a hiring situation,â€ says Lester Rosen, president and CEO of Employment Screening Resources, a pre-employment screening firm in Novato, Calif.
As with interviews, you need to make sure you stay within legal bounds. Even if you turn up a criminal record, for instance, you canâ€™t automatically deny employment. â€œAn employer needs a business justification not to hire based upon a criminal past,â€ says Rosen, author of The Safe Hiring Manual: The Complete Guide to Keeping Criminals, Terrorists and Imposters Out of Your Workplace (Facts on Demand, 2004).
Within legal limits, though, a background check can provide a useful glimpse into a personâ€™s past conduct both inside and outside the workplace. Rosen says, â€œIt shows whether youâ€™re hiring a person who has demonstrated that, given the right opportunity and means, he or she can be tempted to suffer a moral breach.â€
A more controversial tactic is the use of credit reports. While behaviors ranging from compulsive gambling to substance abuse could lead to a high debt level or shaky payment history, so could a serious illness or a divorce. Because of such variables, Rosen says, the information in an employment credit report â€œis really only a valid predictor of job performance for jobs in which people handle money. Unless the employer can articulate a clear connection between whatâ€™s in a credit report and the actual job, the credit report could be viewed as an invasion of privacy and potentially discriminatory.â€
Background screening was the cover story of the September 2005 edition of the national Safety & Health Magazine, a publication of the National Safety Council. The article quoted ESR extensively on the fundamentals of background screening. For a copy of the article, please contact Jared Callahan [email protected] or call 415-898-0044 ext. 240.
- Look for the ESR SPONSORED SEMINAR series below. ESR will be putting on complimentary HRCI certified workshops, starting in the San Francisco Bay Area and continuing throughout the US.
- ESR wrote the book on background checks! â€“ The Safe Hiring Manual, in its second printing is now available from BRB Publications. Click here to read more.
ESR will be participating in the following seminars across the United States.
ESR Announces its Northern California Seminar series–“Avoid Negligent Hiring-Best Practices and Legal Compliance.”
Negligent hiring is one of the fastest growing areas of employment litigation. Learn legally compliant best practices to keep a business productive and out of court, including how to obtain and utilize criminal records and background information on job applicants. Get updated on the recent legal developments, and review case studies to demonstrate what steps employers should take and mistakes to avoid. Learn 10 steps a firm can take immediately to avoid a bad hire.
Tuesday, October 11 – San Francisco
Thursday, November 10 – Pleasanton/Dublin
Check-in and refreshments: 6:00 to 6:30 pm
Program: 6:30-7:45 pm
ESR is an approved provider for continuing education credit from HRCI. This course provides 1.25 hours of continuing education credit. Written instructional material will be provided. There is no charge for the first 45 attendees. See: http://www.esrcheck.com/ESR_seminars.php to sign up and for more information.
September 22, 2005 –Orlando, FL “Avoid Hiring Criminals, Terrorists and Imposters” 2005 National Safety Council Congress.
September 23/24, 2005 –Baltimore, MD “What Every Recruiter and Staffing Professional Needs to Know About Background Checks, Negligent Hiring and Keeping Criminals and Imposters from Putting Them Out of Business.” The National Association of Personnel Services (NAPS) Annual Conference.
September 29, 2005–Milwaukee, WI “Criminals, Imposters and HR—The Legal and Effective Use of Criminal Records and Background Checks in the Hiring Process.” 19th Annual Wisconsin SHRM State Conference. www.wishrm.org
October 6, 2005 –Long Beach, CA “Criminals, Imposters and Hiring – Legal and Effective Background Screening.” 48th Annual Professionals in Human Resources Association (PIHRA) Annual Conference. (www.PIHRA.org) Workshop–2 1/2 hours
October 11, 2005 ESR SPONSORED SEMINAR San Francisco, CA â€“ Campton Place Hotel “Avoid Negligent Hiring-Best Practices and Legal Compliance.” Part of a 4-date workshop series in the San Francisco Bay Area. Workshop is free and attendees will receive continuing education credits towards their PHR/SPHR certification, as ESR is now a HRCI approved provider. See http://www.esrcheck.com/ESR_seminars.php to sign up or read more about the events.
October 27, 2005–Dallas/Ft. Worth, TX “Human Resources, Homeland Security and the War on Terrorism“ 2005 HR Southwest Human Resources Conference and Exposition. www.hrsouthwest.com
November 10, 2005 ESR SPONSORED SEMINAR Pleasanton/Dublin, CA “Avoid Negligent Hiring-Best Practices and Legal Compliance.” Part of a 4-date workshop series in the San Francisco Bay Area. Workshop is free and attendees will receive continuing education credits towards their PHR/SPHR certification, as ESR is now a HRCI approved provider. See http://www.esrcheck.com/ESR_seminars.php to sign up or read more about the events.
November 13, 2005 –Tampa, FL National Conference of Background Screening Firms- “Legal Update– What Every Background Firm Needs To Know About the FCRA and Laws Effecting Pre-Employment Screening.” (intended for background firms and record retrievers) http://www.searchforcrime.com/Conference/body.htm
Contact ESR for further details.
Employment Screening Resources (ESR)
1620 Grant Avenue, Suite 7
Novato, CA 94945