Who are you? An evolving landscape for job applicant background checks and drug screens

It’s so hard to find good help these days that it might tempt some practice human resource leaders to look for shortcuts to bringing in new talent.

In other cases, the regulations about how human resource and hiring managers can act during the process of bringing on a new employee have changed and limited some of the more-traditional processes for screening an applicant.

Drug screening

Multiple states have dealt with the prospect of changing existing pre-employment drug screens, with the rate of American workers and prospective employees testing positive for any drugs reaching a 14-year high in 2018.1

Some states, such as Nevada, are taking it a step further and prohibiting employers from discriminating against workers who have positive marijuana screens (though with exceptions for emergency medical technicians and workers who “could adversely affect the safety of others.”)2

New York City took similar action in May, adopting a law that will go into effect May 10, 2020, barring employers from including THC as part of a pre-employment drug test, with similar exceptions to the Nevada law for law enforcement officers, positions that require OSHA certifications and positions that involve supervising medical patients or could significantly affect the health or safety of members of the public.3

Criminal background

Recreational drugs aren’t the only area where handling job applicants has changed in the past year. More areas of the country are beginning to embrace “ban-the-box” initiatives, which prohibit employers from inquiring about an applicant’s criminal history. As of Aug. 1, Oakland County, Michigan, updated its hiring policies for county employment, removing the checkmark box from applications about criminal history save for positions that have legally mandated background checks as part of the process.4

Credit checks

Numerous states have enacted new laws in recent years barring the use of credit report information in making hiring decisions, and the Society for Human Resource Management (SHRM) cautions that the Equal Employment Opportunity Commission (EEOC) may view inquiries about financial information as discriminatory if it has “an adverse impact on protected classes.”5 Even if a credit check is allowed under your state law, SHRM notes that the “business necessity and job relevancy” of the credit report information should be established in conjunction with requirements of the Fair Credit Reporting Act (FCRA), in addition to it being part of your organization’s written policy on hiring practices.6

As more legislation such as those in Nevada, New York City and Michigan are enacted, it may muddy the waters for hiring managers as to what they can or cannot do in assessing a potential candidate without close scrutiny of these new state- or locality-specific laws.

Key considerations

As Miku Sodhi, MBBS (MD), MHA, PCMH-CCE, FACMPE, wrote in his ACMPE Fellowship paper, it is important to go beyond the résumé or work experience and asses overall personality, as poor hiring practices widely impact profitability for an organization.7

Drug testing

Sodhi notes that every organization should have a written policy on drug testing for job applicants, and that a written notice of testing must be given before an applicant is tested. Some states and localities also have laws requiring a certain amount of advance notice of the testing, as well as under what conditions the testing will occur. In other areas, an applicant may need to be given a conditional job offer letter to indicate the offer is conditional upon completion of a drug test with a negative result.

As part of the written policy, a practice should state whether an applicant who has a positive drug screen may reapply for a position after a period of time (e.g., three months). Practices also must consider whether to pay for the test upfront or have the applicant pay, with reimbursement to an applicant upon a negative result and acceptance of an employment offer.

Background checks

While the days of driving records and credit checks being normal parts of a background check are waning, criminal background and court record searches are still very much an open book. In areas where criminal background checks are permissible by law, an employer should ask an applicant’s permission to conduct a check on a form during the application process.

However, leading HR professionals acknowledge that the number of Americans with some form of criminal history has risen to almost one-third of the working-age adult population.8 A 2018 poll conducted by SHRM and the Charles Koch Institute noted that, amid record-low unemployment, sentiment about hiring applicants with criminal history is shifting: “82% of managers and 67% of HR professionals feel that the ‘quality of hire’ for workers with criminal records is as high as or higher than that for workers without records.”9

The evolution of an organization’s policy on hiring individuals with criminal backgrounds also has implications for the overall culture of the practice, which managers should consider when evaluating applicants and considering how existing staff will interpret policy changes.

As Sodhi writes:

Most organizations have set policies and procedures to optimize the work environment, but when it comes to the evaluation, development and selection process, it is often a rushed process. Some look just to get a warm body in and hope it works out. If these same standards were applied across the organization, it would lead to a disaster. The most crucial pieces of the puzzle are the people and their ability to add success or failure to a company’s bottom line. The right people are an asset to departmental and organizational success. … We are in changing and challenging times in healthcare, and organizations must find ways to stay profitable. As a first step, profitability can be a by-product of hiring the right people for the right job.

Legalities of criminal background checks

It is possible for employers to lawfully administer a criminal background check; however, one should be very careful and cognizant when conducting inquiry about criminal convictions. The Equal Employment Opportunity Commission (EEOC) has provided guidance for employers’ use of criminal background checks. The EEOC ensures that the use of criminal background checks must not result in discrimination on the basis of race, religion, sex, and must be job related for the positions in question and consistent with business necessity, within the meaning of Title VII of the Civil Rights Act of 1964.

A two-step process is recommended by the EEOC. The first step is to use a “targeted screen of criminal records,” which takes into account the nature of the crime, the time elapsed and the nature of the job. The second step is using individualized assessment for the people who are screened out to ensure that qualified applicants were not mistakenly screened out based on incorrect information. This step allows individuals to correct errors in their records. The EEOC has also stated, however, that an individualized assessment may not be necessary as long as the employer can demonstrate that its targeted screen is always job related. That is, the screen must be very closely related to the job. The EEOC has also stated that individualized assessment can help an employer avoid liability in case the employer is unable to demonstrate that its screen is always job related and in line with business necessity. Therefore, conducting an individualized assessment is wise.

When reviewing the results of a criminal background check to make a hiring decision, one should consider the amount of time that has elapsed since any conviction, if the applicant has been in some way rehabilitated and if the job for which the applicant has applied has a tight nexus to the type of conviction(s) for which the applicant was screened.

— Excerpt from “Path to hiring right,” Miku Sodhi, MBBS (MD), MHA, PCMH-CCE, FACMPE

Notes:

1. Quest Diagnostics. “Workforce drug testing positivity climbs to highest rate since 2004, according to new Quest Diagnostics analysis.” April 11, 2019. Available from: bit.ly/2Dfw4bI.
2. Nevada State Legislature. “Nevada Assembly Bill 132.” June 5, 2019. Available from: bit.ly/2N1cOYN.
3. The New York City Council. “Int 1445-2019.” May 10, 2019. Available from: on.nyc.gov/2Wwc4KN.
4. Cavitt M. “Oakland County bans criminal history box on government job applications.” The Oakland Press. June 24, 2019. Available from: bit.ly/2KzFciN.
5. “Can we run credit reports and use them as part of our employee selection process?” SHRM. Available from: bit.ly/2IOLAjW.
6. Ibid.
7. Gerxhani K. “Making the right move. Investigating employers’ recruitment strategies.” Personnel Review, 44(5), 781-800, doi.org/10.1108/PR-12-2013-0229.
8. “Workers with criminal records.” Society for Human Resource Management and the Charles Koch Institute. May 17, 2018. Available from: bit.ly/2G4MHt8.
9. Ibid.