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New OSHA rules limit postincident drug testing

August 15, 2016 by  
Filed under Blog, Compliance, Government, News

New OSHA rules limit postincident drug testing

August 5, 2016 at 5:08 am by: Tennessee Employment Law Letter 

by Bart N. Sisk

The Occupational Safety and Health Administration (OSHA) has issued new rules revising its requirements for recording and submitting records of workplace injuries and illnesses. The revised rules require employers in certain industries to submit injury and illness data electronically. The frequency and content of the reports depend on the size and industry of the employer. The final rules also include provisions that encourage workers to report work-related illnesses and injuries and prohibit employers from retaliating against employees who make such reports. 

Employers must inform employees by August 10, 2016, about the prohibition on retaliation for reporting injuries and illnesses. Moreover, you must establish a procedure for employees to report work-related injuries and illnesses that is “reasonable” and doesn’t deter or discourage them from making reports.

Granted this is pretty dry stuff. However, if you currently have a blanket rule requiring employees to submit to mandatory drug testing after an accident or injury, regardless of the cause of the accident, the amount of damage, or the significance of the injury, read on. OSHA considers such policies to be a form of adverse action that can deter employees from reporting of an injury or illness.

Drug use must be a likely factor
OSHA’s comments on the final rule are instructive:

Although drug testing of employees may be a reasonable workplace policy in some situations, it is often perceived as an invasion of privacy, so if an injury or illness is very unlikely to have been caused by employee drug use, or if the method of drug testing does not identify impairment but only use at some time in the recent past, requiring the employee to be drug tested may inappropriately deter reporting.

While OSHA claims its goal is not to ban drug testing of employees, it has affirmed its position that to survive a challenge (and a potential citation and hefty penalty), postincident drug testing must be restricted to situations in which employee drug use is likely to have contributed to the accident and the drug test can accurately identify whether the worker was impaired by drug use at the time of the incident. The agency provides the following examples to support its position on limited drug testing:

For example, it would likely not be reasonable to drug test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction. Such a policy is likely only to deter reporting without contributing to the employer’s understanding of why the injury occurred, or in any other way contributing to workplace safety. Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.

Takeaway
Be advised that if you have a blanket policy that requires drug testing after any workplace accident or incident, OSHA considers it a form of adverse action that could deter employees from reporting injuries and illnesses. Even if you revise your policy to limit drug testing to situations in which the employee’s actions (or inaction) could have caused or contributed to the accident, you must establish that the drug test can accurately identify whether the employee was impaired by drug use at the time of the incident.

If you drug test employees pursuant to a state or federal law or regulation, you should be safe. OSHA acknowledges that conducting drug testing to comply with the requirements of a state or federal law or regulation—for example, workers’ compensation rules or U.S. Department of Transportation (DOT) regulations—isn’t a violation of the rule because the employer’s motive in testing isn’t retaliatory.

There’s no reason to stop postaccident drug testing. The limitations on such testing are found in the commentary to the rules, and the new rules will likely face legal challenges. However, any policy language calling for “blanket” drug testing should probably be discarded in favor of language stating that testing will be done when an employee’s action (or inaction) is suspected of causing or contributing to the accident. Given OSHA’s comments about determining whether an employee was impaired at the time of the incident, time is also a factor in evaluating a drug-testing policy. Remember, testing that complies with state or federal laws or regulations isn’t considered a violation of the rules. That said, if you haven’t reviewed your drug-testing policy recently, now would be the time to do so.

Massachusetts Research Process

November 24, 2015 by  
Filed under Blog

 Background checks out of Massachusetts have always been a pain point within our industry. We know this is an area where time service creates issues, and most providers simply blame the Court Clerks, but we strive to provide another layer of transparency regarding the research the process.  

This post serves to provide insight to Massachusetts and challenges within this jurisdiction.

Superior Court: Superior court has computer system but it only shows name and year of case filing.

District Court: District is all docket books, and only shows name, DOB and year of case filing. All other case info must be obtained via file retrieval that is done by clerks and there are often lengthy delays due to limitations on the number of files pulled per day/runner/etc.

Non-Default District courts rarely have any sort of computer system or docket books available to the public. They are 100% clerk run.

Special cases – Courts that may experience long delays due to court process:

Worcester                                                                                                                                                                          

  • Runners drop off lists of names in a basket, clerks (about 6 of them) pick up and complete randomly—this is a challenge because runners have no idea who is working on their lists.
  • Files: Superior court has electronic files but District court still works with paper files, which means pages within files or even entire files can be missing or difficult to locate. This can cause initial delays, and sometimes files are given to runners and then they discover pages are missing.
  • Newer cases: the files for these cases can be housed in several different locations (probation office, judge’s chambers, DA’s office).
  • Last year a new clerk was hired and she got in trouble for helping court runners too much
  • New policies in the court dictate a total of 10 files to be pulled daily.
  • Clerks who are caught pulling more than 10 will be fired immediately.
  • The only exception is if one subject has more than 10 files, all the files will be pulled for that one particular subject and no other.
  • There may be days where their house volume will not permit them to pull any files at all and they will not carry those 10 files to the next day. 

***All hits must have files pulled. Court clerks are not permitted to have contact with researchers. Extended TAT can stem from clerks not pulling files on a first-come first-serve basis and our researcher often has to reorder files to increase the chances that ours will be pulled that day.

Hampden

The subject is searched at Superior (done using computers that do not have IDs, only docket numbers) and the lower level (which is completely docket books).

  • Once a subject has a hit, the docket (file) is compiled by the researcher (researcher puts this person’s docket number(s) with others that need to be pulled).
  • The researcher must then wait for the docket to be pulled (documents pulled at clerk’s discretion.  There is no order to this).
  • TAT – Hampden aims to pull files for 10 subjects each day, but per researcher this goal never gets accomplished.

Quick App Pro

July 16, 2015 by  
Filed under Blog

Announcing QuickApp Pro:

Image result for applicants

 

Back Track Screening is pleased to announce a new ordering option called QuickApp Pro. This new option allows us to customize a webpage and assign a specific web link that you can share with your applicants. The link can be sent via email, text, or it can be posted on your company’s web page. Applicants will be asked customized questions that pertain to your application/background check authorization, then they can authorize their background check electronically. These applications and authorizations are then sent directly into our system. At that point we can begin to process the background check instantly or we can have it wait for your company’s approval first. 

 

If you are interested or if you would like more information, please contact a customer service representative today at 801-326-8276 to learn more. 

Still Scratching Your Head about Ban the Box?!?

November 4, 2014 by  
Filed under Blog, Compliance, Government, News

In the last year we have seen a number of states begin to implement what they are calling “Ban the Box” legislation into their state hiring laws. These laws will directly affect the way that employers hire and screen their new employees.  A total thirteen states have implemented laws to remove questions from applications asking potential candidates if they have been convicted of a felony. It is important to stay up-to-date on these changes but we understand it can be difficult when the changes happen so quickly.

Click Here to go to the National Employment Law Project’s website to read more about how “Ban the Box” has affected hiring laws in your state.

 

Pre-employment Screening Best Practices

In today’s litigious culture, employers simply cannot afford to hire employees who will put their company at risk.  More often than not, employers are being held legally responsible for the wrongful acts of employees, as courts have found that it’s an employer’s duty to conduct a thorough background check on all potential employees.

The purpose of this article is to outline the best practices for a thorough and accurate pre-employment background check.  Not all background checks are equal.  Section 613 of the FCRA states that Consumer Reporting Agencies (CRA’s) are to “maintain strict procedures designed to insure that whenever public record information which is likely to have an adverse effect on a consumer’s ability to obtain employment is reported, it is complete and up to date.”

Back Track Screening takes this responsibility seriously. Our own internal policies ensure that we will never return unverified or outdated criminal records to our customers.

Employers should be wary of companies which promise a ‘complete and instant’ search using a database, as a ‘reliable’ pre-employment screening tool.  There is no such thing as a complete and instant criminal database, and relying on database records only can expose your company to very costly litigation.

The first thing an employer should know is that a single database containing all criminal records does not exist.  Unfortunately, employers and background check agencies cannot simply enter an applicant’s name, date of birth and/or social security number into a database and receive all criminal records belonging to that applicant. Instead, criminal records are stored in completely separate systems at County courthouses, in state repositories and through private database companies.  This means employers should use a ‘location-centric’ and multi-faceted search approach.

The best practice for an accurate criminal search is to first determine where your applicant has lived, worked, and/or gone to school during the past 7-10 years. Back Track Screening utilizes a Social Security number search or trace product to produce an applicant’s address history. With this information, Back Track Screening can make an informed decision as to where criminal searches should be performed. 

With an applicant’s address history, Back Track Screening will perform a criminal records search at the County courthouses in the County(s) where the applicant has resided in the past 7-10 years. County records are the most detailed, accurate and up-to-date type of criminal searches available. Unlike databases, the information contained in County records is usually updated in real time and will contain the most accurate case disposition.

Back Track Screening will utilize databases as supplements to County searches only. Searching statewide and multi-state databases casts a wider net and searches for crimes that may have been committed outside of an applicant’s County or state of residence. From time to time, databases may produce criminal records in jurisdictions where there was no indication the applicant ever lived. 

Statewide and Multi-State databases are usually not official records of the state. Some databases are “name only indexes” or may not contain records from every jurisdiction within the state.  Because database records are not updated on a regular basis and old records are not typically purged from databases, the records reported in databases often have outdated or inaccurate dispositions. For example, an applicant might enter into a plea in abeyance for a felony in 2006. In 2007, the felony charges may be dismissed or reduced to a misdemeanor. A database search in 2010 may still report the record as a felony plea in abeyance even though the final disposition is dismissed or reduced to a misdemeanor.

Instant databases may also inadvertently report expunged records which should have been removed. Therefore, if records are found on a statewide or multi-state database, Back Track Screening will order the records from the County courthouse(s) of the reported offense(s).  This ensures that only accurate and up-to-date records are reported to our customers.  Databases should never be used as your only source for criminal records.

Next, let’s examine the employment application. An employment application is essentially the first step when it comes to screening potential applicants. We have been trained as members of society to fill out applications and questionnaires. Whether we’re applying for a loan or visiting the doctor, we are constantly asked to answer questions of a personal nature. A job application is certainly no different. A clear, concise application will force your applicant to answer some very important questions, to be up front and honest, and will more than likely discourage applicants with something to hide. Whenever possible, have the applicant fill out the application on site. Allowing the applicant to take the application home can provide more time and opportunity to cleverly falsify information. Here are some tips for a more effective application.

The EEOC discourages employers from stating on their application that a background check will be performed. If an employer feels compelled to include this statement, the employer should follow it up with a statement similar to the following, “A criminal conviction is not an automatic disqualification*”.

Be sure to include a statement that “any fraudulent material is grounds for termination*.” The EEOC supports an employer’s decision to refuse to hire an applicant, or to discharge an employee on the basis of falsified answers to questions regarding their conviction records.  Therefore, a clear, strongly worded application could make it easier to dismiss a troubled applicant for providing false information.

Other things to watch for include an applicant failing to provide the name of his or her last supervisor. They may not explain why they left a previous job or they may fail to explain a gap in employment. They may not sign the application or they may leave the criminal question blank. The applicant may also have several changes or scribbles on the application as if they are making it up as they go.

The interview process is your second line of defense in the hiring process. The interview provides an opportunity for the applicant to clarify any unexplained gaps in employment. If everything checks out and there are no unexplained gaps, chances are that the applicant has not spent time in jail or prison. We also suggest that you take the time during the interview to inform the applicants that a criminal background check will take place. This is best accomplished in the form of a question such as, “Here at ABC Company, we perform background checks on all applicants. Is there anything you might be concerned about*?” This allows the applicant to be self-disclosing. If the applicant has nothing to hide, this is probably of no concern. However, an applicant with a criminal record is more likely to be honest and inform you of any criminal history he or she may have. Most applicants with a criminal record would rather inform you personally of any convictions rather than have you find them later on. Don’t assume that you are getting the entire truth. Just because an applicant tells you about his or her past offenses does not mean everything they tell you is accurate. Their version is obviously told with a different perspective. As further verification, you might also inform the applicant that you will contact all past employers. Another sample question might go something like this, “We contact all past employers, how might your supervisors describe your abilities*?” Again, if there is bad news to be had, most applicants would rather tell you themselves.

Next, check references!  While many employers may not provide answers to all your questions in a reference check, the basic concept is the same. You must know where your applicant has been! With the employment application, interview and reference checks in place, you should be able to verify the identity, address and employment history of your applicant. Again, if you cannot verify this information, a criminal search is of little value.

Finally, what should you do when criminal records are found?  The EEOC and many state laws do not permit employers to automatically disqualify an applicant because of a criminal record unless the employer can demonstrate a business necessity for doing so. Therefore, a blanket policy of automatic disqualification because of a criminal record may be discriminatory.  The EEOC suggests an employer take the following factors into account when considering prior convictions in making the hiring decision:

The nature of the position held or sought:

Examine the nature of the position. Take into consideration the job description, requirements and responsibilities associated with the position. Does the position require heightened sensitivity to an employee’s conviction record or involve a high degree of risk to the public? For example, does the position involve care for children or invalids, or does it provide access to weapons or drugs? Does the job require a high degree of trust and honesty? Does the position require by law an inquiry about arrests or convictions?

The nature and gravity of the offense or offenses:

Examine the nature of the crime committed. Was it a crime of violence, or theft or dishonesty? Would it be wise to place an applicant charged with theft in an accounting position? Consider the gravity of the offense; in other words, just how serious was the crime? You might consider an applicant charged once with a DUI more than you might consider an applicant charged once with Aggravated Assault. (Factoring in all other considerations).

The time that has passed since the conviction and/or completion of the sentence:

You should also consider the length of time between the conviction and the employment decision. A conviction 10 years ago may not be as alarming as that same conviction one year ago.

The number of convictions:

Look at the number of convictions the applicant has on his or her record. Is there a pattern of convictions? Does the applicant have a propensity towards violence, theft?

The facts surrounding each offense:

Look at the facts surrounding each offense. Are there any mitigating circumstances or facts that add to the seriousness of the offense?

The applicant/employees employment history before and after the conviction:

Take notice of the applicant’s employment history before and after the conviction. Is their employment history stable? Do all references check out?

 The applicant’s efforts at rehabilitation:

Finally, consider the applicant’s efforts at rehabilitation. Is the applicant making a sincere effort to change, become productive? This is an especially important consideration if past offense(s) are of a more serious nature.

 We cannot stress enough the importance of consistently following a fair screening policy and documenting your decisions. You must document why and how you did or did not choose a certain applicant for a certain position. If unfortunate circumstances arise, your best protection is the documentation you have on file. Proper documentation can drastically reduce the possibility of being found guilty of negligence or discrimination. 

*Legal Disclaimer: This article is designed solely for informational purposes, and should not be inferred or understood as legal advice. Persons in need of legal assistance should seek the advice of competent legal counsel.  Check with an employment law attorney in your state before approving and applying any of the suggestions or interview/application *questions in this article.  An employer should engage in a careful analysis to determine they will not violate a state law or Title VII of the 1964 Civil Rights Act.

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