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Why
pre-screen?
Employers have become painfully aware of the
tremendous consequences of bad hiring
decisions. Pre-screening promotes safe and
profitable workplace. Pre-employment
screening is an effective risk management
tool that has been proven to significantly
reduce the risk of a bad hire. Employers
typically engage in pre-employment screening
for four reasons:
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To discourage applicants with something
to hide--just having a pre-screening
program discourages job applicants with
a criminal background or falsified
credentials.
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To eliminate uncertainty in the hiring
process--many employers have discovered
the hard way that relying on instinct
alone is not enough. Hard information is
also an important part of the hiring
process.
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To
demonstrate Due Diligence--all employers have a reasonable duty of
care in the hiring process. That means an employer must take
reasonable steps to determine whether an employee is fit for a
particular job. For example, an employer who hires a bus driver
could be found liable if that driver assaults a passenger, and a
reasonable background check would have disclosed prior assaults
during a criminal records research process.
-
To encourage
honesty in the application and interview process--Employers find
that just having a background program will encourage applicants to
be more forthcoming about their history.
Performing
background screenings is certainly not a guarantee that every bad
applicant will be discovered. For the prices charged by
pre-screening firms, employers cannot expect an in-depth and
exhaustive FBI type investigation. However, just engaging in a
screening program demonstrates due diligence and provides an
employer with a great deal of legal protection.
It is also
important to understand that a pre-screening program is aimed at
how a person has performed in the public aspect of their lives.
Items such as a criminal records or previous job performance
reflects how a person behaved towards others, or discharged their
obligations and responsibilities. Screening is NOT an invasion of
privacy, a sign of mistrust or an act of "Big Brother."
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Why should a firm outsource this
service?
Pre-employment
screening is a time consuming and detailed task that requires highly
specialized knowledge and resources. It is also subject to numerous
legal regulations. Many firms have found that it is an inefficient
use of their time and resources to attempt to perform a service that
a specialist can do efficiently and cost-effectively.
Even
firms with fully staffed Human Resources or Security departments
have found that outsourcing this service is more efficient and
allows them to focus on tasks that can only be performed inside the
company. Many HR and Security professionals also prefer that a new
employee's first contact with their department not be a background
check. Also, outsourcing this service does not leave a new employee
feeling that confidential information about them is being obtained
by others in the firm.
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What laws govern the collection and use of the
information you make available?
The FCRA (Fair Credit
Reporting Act) is the law that allows the applicant to have a copy
of our reports and to challenge it's accuracy. The EEOC regulations
allow you to pre-screen applicants, but prohibits you from hiring
decisions based on sex, age, race, etc.
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It may be legal to get this information about a job
applicant, but is it legal to use it to make a hiring
decision?
Absolutely! Misstatements on an application
are grounds for dismissal of an employee or denying an applicant. In
fact, if you hire a dangerous or unqualified person into a position
where they could harm others, and a reasonable inquiry would have
revealed that information, you can be held liable for the employee's
acts.
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What happens if I get a
candidate for a job who has an excellent resume and has other job
offers and I can't wait for a background check?
Hire
that person contingent upon a successful background check. If you
find that the person made misstatements on their application or
resume, that is grounds for dismissal. Remember that our Applicant
Consent Form is your first line of defense. If they know that you
are going to verify information they are much less likely to
misrepresent themselves.
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Why must I have the applicant's permission to
do a background search?
Simply
stated, it's the law. The federal Fair Credit Reporting Act governs
background searches, and violations of this act can have serious
legal ramifications. In this situation, the FCRA was designed to
protect the individual consumer and his/her privacy.
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What is the FCRA?
The FCRA
is the federal Fair Credit Reporting Act, which is the governing act
applicable to background searches. The federal Fair Credit Reporting
Act (FCRA) stipulates that certain forms and procedures be followed
in order to preserve the rights and privacy of applicants.
Violations of this act may create substantial legal ramifications.
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What does the Fair Credit Reporting Act have to do with a
criminal search?
The FCRA governs all background
searches, not just credit reports. The Act defines permissible
purposes, how the information is handled, what procedures and
documentation must be followed, and even defines the procedures for
when an applicant is denied a job based on the results. There is a
great deal more to know about the FCRA, and we recommend all
personnel responsible for hiring employees be aware of the impact
this act has on your employment decisions. The full text is
available at: http://www.ftc.gov/os/statutes/fcrajump.htm
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If I do not intend to hire an applicant, do I have an
obligation to that individual?
It all depends on why
you are not hiring them. If the background search revealed
information that caused this adverse action, then you are required
by the FCRA to notify them of your intent not to hire them, issue a
copy of their Summary Of Rights, and supply a copy of all the
background reports gathered. After allowing them time to dispute the
results, you must then notify them that their application has been
terminated.
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Are statewide searches sufficient as a criminal history
search?
This question is very difficult to answer.
Although many states offer this level of search, we have witnessed a
lack of sufficient information, in our opinion, to make realistic
due diligence decisions. Statewide searches often only contain what
the counties chose to report, and some states do not require county
participation - it is strictly on a volunteer basis. Additionally,
most states have lengthy turnaround time, causing delays in reports.
We will gladly do a statewide search where offered, but we do not
believe that a statewide search by itself provides sufficient
information for an informed hiring decision to be made.
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Are Felony and Misdemeanor records always
together?
In most counties and states they are housed
in the same court and therefore available together. However, you are
welcome to order just felony convictions. Those few counties that do
not house their criminal records together require a separate search
and possibly additional fees.
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May I select only Felony searches?
Absolutely, as long as all applicants for that level of position
are reviewed under the same scrutiny.
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Are Motor Vehicle Records (MVR) considered public
records?
No, they are not considered public records.
That means you must have a 'permissible purpose' and some states may
require proof of this with a signed release. Each state establishes
their own level of information and the length of reportable data for
employment searches.
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Is it legal to pull your own or your family member's
credit report?
You must have legitimate permissible
purpose to pull any credit report, even your own. Inform members of
your staff who are authorized to pull credit reports that it is a
violation of Section 604 of the Fair Credit Reporting Act to ask for
a credit report without legitimate permissible purpose. It is a
violation of the law and may provide the subject of the report with
grounds for a damage suit. From TU News
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Can you verify social security numbers?
We can access several searches that can help determine the
relationship of a social security number and the related names used,
or when and where the SSN was issued. However, only the Social
Security Administration can confirm a social security number is
legal and belongs to a specific person. Although the federal
government is currently testing other solutions, only the following
procedure is available to truly verify a person's social security
number.
POST-EMPLOYMENT SSN VERIFICATION
Up to 5 names - Call
1-800-772-6270 or 1-800-883-1213
Up to 50 names - Fax a list
to your nearest SSA office
Over 50 names - Register for
Enumeration Verification Service
(EVS) Each request must
include SSN, full name, date of birth and sex
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How do I know which searches I should
request?
Your background searches should be
predicated on the position for which you are hiring, not on the
individual you are hiring. In other words, define your searches
based on the needs of the job and apply it consistently for all
applicants.
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What do I do if an applicant says the report is not
accurate or not them at all?
First, let us know what
they are disputing. We will run the search again and either correct
the information found or confirm the original information. We cannot
guarantee the information is accurate; we can only guarantee it is
in the public records and matches the major identifiers of your
candidate. As the end-user, you are the only one who can confirm the
identity of the individual. Only through fingerprints can a true
identity be made.
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I've been told that I should not ask an applicant for
date of birth, yet it is required to do most searches. Why the
contradiction?
You are not allowed to use the date of
birth as a determination in offering a job; that would be
discriminatory. However, DOB is one of the identifiers that local
and state government agencies use when criminal records are filed.
Therefore it is permissible to request it in conjunction with these
searches. If you are concerned about this, we will gladly allow the
applicant to supply this piece of information directly to us, thus
removing the DOB from your pre-employment inquiries.
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Why do I need a search firm? Isn't most of this
information online?
Contrary to popular opinion,
criminal and other searches are not 'available online.' Very few
county court records are accessible online, and then only with
special access procedures and fees. Most of the advertised sources
of online criminal history do not come directly from the courts, but
is retrieved from databases that are not always accurate or current.
Always ask if their searches are direct from the originating source
or are they simply pulled from a purchased database.
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How common is drug testing?
In 1983, only
3% of the Fortune 200 companies were testing one or more classes of
job applicants or employers. By 1991, 98% had implemented some form
of drug testing.
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Can a drug test be 'beaten'?
Yes, but the
odds are long and getting longer all the time. The science of drug
testing has progressed significantly in recent years. Some of the
procedures that have been instituted to determine intentional
attempts at 'beating' a drug screen are:
-
Chain of Custody procedures and specific protocols that
track the specimen from the moment of collection through the
processing and storage procedure;
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Temperature strips, which assure the sample temperature
matches body temperature at the time the collection is made;
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Integrity testing, to determine Creatinine and specific
gravity levels, which detect attempts to dilute the specimen;
-
Adulterant testing, developed to identify attempts to use
nitrites and other adulterants as a means to disguise drugs in the
collected sample.
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What about 'false positives?'
Most of the
popular stories about what triggers a 'false positive' - such as
what you eat or drink, what cosmetics you use, or what
over-the-counter medicines you take - are based on misconceptions.
They either:
- Don't show up
at all
- Are not
detected at sufficient levels
- Are easily
distinguishable in the laboratory
Some employees
have claimed that passive inhalation of marijuana smoke caused their
'positive' test results. However, studies have shown that the
exposure would have had to be so constant and prolonged, and in such
a confined space, as to represent an absurd scenario. Yes, you will
test 'positive' if you are in a sealed phone booth with four
marijuana smokers who smoke non-stop for eight hours. Otherwise, the
claim of passive inhalation triggering a 'positive' test result is
easily rejected.
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Must I have a drug policy in place before I start drug
testing?
Yes! You must also notify all current
employees of the new policy and allow sufficient time for this new
policy to be recognized throughout your company. Although you may
start pre-employment testing as soon as a drug screening policy is
in place, it is strongly recommended that there be a waiting period
before asking current employees to submit to testing.
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An applicant tests positive for drugs and
claims there must be a mistake. Should I
allow him to have a second drug screen?
Under no circumstances should an applicant /
employee be allowed to have a 'new' specimen collected when they
claim 'the lab made a mistake'. If the Chain of Custody is intact,
there is virtually no room for error. Keep this in mind: these tests
are highly structured, federally regulated, sophisticated
procedures. A mistake is not likely. There are other options
available at this point: re-confirming the original specimen;
transporting the specimen to a lab for testing; or the services of a
Medical Review Officer.
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How long do drugs stay in an individual's
system?
Drugs do not typically remain in the body for very long. Often
no more than 24 - 72 hours, depending on the frequency of use and
the individual's body functions. Marijuana is the exception, staying
sometimes from several days to several weeks, again depending on the
circumstances. However, through hair analysis, drugs are detectable
up to 90 days after drug use.
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What happens to the specimen when someone tests
positive?
When a specimen tests positive, it is
automatically scheduled to be processed at a certified laboratory to
confirm the presence of the drug in question. If this sample is
confirmed positive, then the balance of the specimen is stored under
strict laboratory procedures for future needs. It is held under
refrigerated conditions for at least six months.
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Should I fire an individual for having a positive
result?
Every company has different policies. Some
find termination as the only answer for a positive drug screen, as
drug use is an immediate breach of company policy. On the other
hand, many companies now offer Employee Assistance Programs (EAP),
which include drug and alcohol counseling and treatment.
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Isn't marijuana just a recreational drug?
Marijuana today can have 22 times the potency (THC content) that
Marijuana did in the late '60s. It is retained in the fatty tissue
of the body for several days and it can cause impairment long after
the 'high' wears off.
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We do pre-employment screening. Is it important for my
company to do other drug testing?
Absolutely.
Pre-employment screening is only effective in discovering hard-core
abusers; those who cannot abstain for a short period of time while
they look for work. The only effective way to truly make your place
of employment drug-free is to include in your drug policy the
stipulation that you reserve the right to test for a variety of
recognized specific situations. See Types of Drug Screening
elsewhere on this site. Be aware that some states limit or forbid
the use of certain types of drug screening.
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What is a chain of custody and why is it
important?
This is the detailed documentation of the
drug screening process, which accounts for the integrity of each
step of the procedure, by tracking the handling and storage of the
specimen from collection to disposal. This multi-part medical
document, with assigned barcode numbers, facilitates the process and
documents by whom, when and for what purpose the specimen was
handled. Clinical labs will not proceed with a drug screen if they
recognize the chain of custody has been broken. With a fully
executed Chain of Custody, the drug screen result is completely and
legally defensible.
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What is the difference between laboratories?
There can be a multitude of differences, but the most important
is whether or not it is a certified lab. While not required in the
private sector, it is highly advisable and more defensible in terms
of a legal standpoint to use a certified laboratory. Drug testing
laboratories can be certified by:
- The US Dept
of Health and Human Services (HHS), also known as SAMHSA (formerly
NIDA);
- The College
of American Pathology; and
- Many state
health departments.
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What are NIDA and SAMHSA?
SAMHSA stands
for Substance Abuse & Mental Health Services Administration.
NIDA stands for National Institute for Drug Abuse. These are federal
bureaus that create and administer public policies and standards
where drug and alcohol issues are involved. The cutoff levels for
drug screening are set by SAMHSA, and only laboratories that meet
SAMHSA certification requirements are utilized by HR First
Contact.
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What is the difference between a 5-panel screen and a
10-panel screen?
The collection procedure and
screening process are identical. The difference is the number of
drugs for which the specimen is screened.
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10
PANEL SCREENING |
5 PANEL SCREEN |
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Amphetamines |
Amphetamines |
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Barbiturates |
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Benzodiazepines |
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Cocaine
Metabolites |
Cocaine
Metabolites |
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Marijuana Metabolites |
Marijuana Metabolites |
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Methadone |
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Methaqualone |
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Opiates |
Opiates |
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Phencyclidine
(PCP) |
Phencyclidine
(PCP) |
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Propoxyphene |
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What exactly is 'low creatinine' in a drug
test?
Low Creatinine indicates a specimen is below
minimum concentrate levels, and therefore the results are not
conclusive. Also known as a 'dilute' specimen, it has a creatinine
reading less than 20 mg/dL, but greater than 5 mg/dL, and a specific
gravity less than 1.003, but greater than 1.001.
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What is an adulterated specimen and do you screen for
that?
Adulteration screening is standard in our drug
screens. It screens for the presences of nitrites, a chemical
purchased for the distinct purpose of adulterating the specimen to
obscure the presence of drugs. Although it might be successful in
obscuring drugs, the nitrites themselves are detectable and can be
considered a 'positive' drug screen; and therefore employment
decisions can be made based on that 'confirmed positive.' Nitrites
are not a personality-altering substance, nor addictive.
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What is the difference between a 'diluted' specimen, a
'substituted' specimen and an 'adulterated' specimen?
A 'diluted' specimen is when an individual has either
intentionally ingested high levels of liquid or added a liquid to
the collected specimen in order to decrease the concentration of the
specimen. If a specimen is sufficiently diluted, it makes it
difficult for the lab to identify any drugs that might be present.
Specifically, a diluted specimen has a creatinine reading less than
20 mg/dL, but greater than 5 mg/dL, and a specific gravity less than
1.003, but greater than 1.001.
A 'substituted'
specimen is when something other than human urine has been submitted
as the candidate's collected sample. Simply stated, such specimens
do not exhibit the clinical signs or characteristics associated with
normal urine. Specifically, a substituted specimen has a creatinine
of less than or equal to 5mg/dL and a specific gravity less than or
equal to 1.001 or greater than or equal to 1.020.
An 'adulterated'
specimen is when an individual has introduced a foreign substance
into the collected sample to intentionally disguise drugs in the
urine. There are numerous products on the market, such as Klear,
that are very easily bought on the Internet and have been designed
for just this purpose. Specifically, an adulterated specimen is when
the nitrite concentration is equal to or great than 500
cg/mL.
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Where do I find the special requirement and laws for
each state, concerning drug screening?
Obviously,
your state bar association can lead you to many publications and
sources that will answer this need. You might also want to contact
the Institute for a Drug-Free Workplace, which offers many
publications dealing with state and federal drug testing laws, as
well as many other drug testing topics. Their website address is http://www.drugfreeworkplace.org/
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