Employee testing is a controversial topic. Ask five people their stance on this topic and you will get five different, often heated opinions. Business owners, executives, and managers tend to respond in the pro-testing camp, citing customer protection, business intelligence, and other employee’s welfare as justification. Employees, government agencies, and activist groups tend to respond in the anti-testing camp, citing employee privacy, data protection, and employee rights against discrimination as reasons not to test. So, the question is: to test or not to test employees? This blog will attempt to make sense of the conflicting opinions and offer suggestions on how to develop a testing program that will not alienate your current and prospective employees .
Drug testing and credit check / background screens for newly hired employees as part of a pre-employment screening process have become more common. Since drug use (or abuse) can have a harmful impact on not just the individual but also on the safety of customers and other employees, drug testing especially for new hires is widely accepted. Drug testing is permissible providing you treat all incoming employee in the same manner. If you drug test the newly hired teller, you also have to drug test the incoming CFO. To avoid issues of discrimination, treat the results the same. If you would rescind the offer from newly hired teller for a positive drug test, you should also rescind the offer from the CFO. Whereas guidance on drug screening is clear, credit checks and background screening is very muddy.
Complaints to the EEOC (Equal Employment Opportunity Commission) for discrimination arising from the use of credit checks/background screening as a qualification for employment has been and is on the rise. The reason why complaints are rising is the manner in and use of the data gathered during the credit check / background screen can interpreted differently thus causing a potential discriminatory impact. There is growing case law (EEOC vs. Kaplan Higher Education Corp & EEOC vs. Freeman) where the EEO is claiming credit checks / background screening caused the rejection of applicants based solely on their credit histories had a discriminatory impact on minorities. The argument the EEOC is making is that credit histories / criminal background may not be bona fide occupational qualification upon which to reject a candidate or rescind an offer. In fact, due to these recent complaints and the high level of unemployment, Congress is debating new legislation, the Equal Employment for All Act (H.R. 3149) which would amend the Fair Credit Reporting Act (FCRA) to further restrict the use of credit reports /background screens for hiring decisions.
There are steps employers can take to avoid charges of discrimination. Some of them are basic and some will require training (for specific advice on your program, please discuss with an employment attorney):
One of the most important ways to avoid a charge of discrimination is to keep current with changes in legislation, EEOC and court rulings. This is a growing area of complaints and will continue to grow as employers redefine the employment relationship.
Testing current employees is very tricky and there is no clear consensus on how to best develop a testing program. Testing current employees can breed resentment and a possible employee claims of discrimination, especially if the testing appears targeted at an individual or group. As with testing prospective hires, there is a difference between drug testing and credit check / background screens. Drug testing, even for current employees, is mostly permissible. The standard for drug testing current employees is reasonable suspicion that the employee is using and or abusing drugs (alcohol would also fit in this category). Reasonable suspicions is construed liberally and below are a few sound guidelines:
In many states (again, please confer with an employment lawyer to discuss your specific situation) it is permissible to test employees without reasonable suspicion in limited situations, which are: (a) provided you give employees advance notice of the test and (b) their job responsibilities pose a danger to others. As mentioned earlier, credit checks / background screening on current employees is much more controversial and there is no clear consensus on how to develop a program that will reduce claims of discrimination. Best guidance would be:
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