Background Screening and Drug Testing 101, Winter Edition

Background Screening and Drug Testing 101, Winter Edition

We all remember the dreaded “101” courses in college, essential back-to-basics drudgery involving English, history and science. But here at GroupOne Background Screening, we believe education is a good thing. So to start off 2022, let’s talk basics!

Oftentimes, our team is asked if there are restrictions against background checks and does it make a difference if an employer hires a third party to conduct the screenings?

Federal law does not restrict background checks as long as the employer conducts the check directly. When an employer uses a third-party vendor such as GroupOne, the process is governed by the Fair Credit Reporting Act (FCRA).

Fair Credit Reporting Act
The FCRA does not prohibit an employer from hiring a vendor to conduct background checks or from taking action based on the results of an investigation. It does require the employer to first provide notice and obtain permission from applicants and employees before the process begins.

The FCRA also requires that a notice be provided to applicants and employees before any adverse action can be taken based upon the background information. It is also necessary for applicants or employees to be allowed to correct or explain any negative information.

In addition, the FCRA requires employers to maintain the confidentiality of the background information and places limits on how this information can be used.

Employers should know that several states, especially California and New York, have additional laws governing the use of background checks with restrictions on an employer’s ability to obtain and use this information.

Fair Chance Act
Effective December 2021, the federal Fair Chance Act prohibits federal contractors from asking applicants about their criminal histories until after a job offer is extended.

In 2012, the Equal Employment Opportunity Commission (EEOC) issued guidance regarding when it’s appropriate for an employer to use background information relating to an applicant’s criminal history. Guidelines state employers should use caution before excluding individuals based on criminal history, and asks employers to avoid blanket exclusions unless there’s a link between the job and the crime committed.

It should also be noted, certain states and counties across the U.S. have enacted additional legislation limiting the ability to inquire about past criminal history and the use of this information during the application process.

Drug and alcohol testing
Another common question we receive at GroupOne involves the restrictions against drug and alcohol testing of applicants.

Pre-employment drug and alcohol testing is lawful under federal and state law when:

    • the testing is required by law (such as the U.S. Department of Transportation drug and alcohol testing requirements) or is part of a pre-employment medical examination required of every applicant for the same position;
    • an applicant consents to the testing;
    • the testing is conducted under considerate conditions to minimize intrusiveness (such as an applicant is not observed while furnishing a sample); and
    • no medical information is disclosed and the employer is only informed of a pass or no-pass result.

Please note that drug and alcohol testing of applicants and employees is primarily a subject of state law, which can vary widely from state to state.

Please do not hesitate to contact us at GroupOne should you have questions as our team of background screening professors are here to assist!

The information and opinions expressed are for educational purposes only and are based on current practice, industry related knowledge and business expertise. The information provided shall not be construed as legal advice, express or implied.

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