Dave F. Katzenmeyer, President, Genesis Background Screening Services
As if your HR department doesn’t have enough to do, regulations keep changing and becoming more confusing all the time! Here are 3 of the top items on employers’ minds right now:
#1 More and more states are legalizing recreational use of marijuana, can I still drug test my applicants?
Yes, you can still drug test for marijuana, but there are some things you should know. As always have a comprehensive, easy-to-understand written policy. When/if your state legalizes marijuana or already has, review and update your policy to reflect the current law. If you didn’t have a written policy before, do it now! Give your current employees 30 days notice before your new policy takes affect. For applicants, give them a copy of your policy up front and be clear about consequences for testing positive or refusal to be tested.
Typically, testing is done before employment, after accidents or when drug abuse is suspected. Again, be consistent in how you handle this. As an employer, you have the right and obligation to maintain a drug free (and alcohol free) work environment.
Various State Supreme Courts, including California, have upheld the employer’s right to deny jobs to applicants who have tested positive for marijuana during pre-employment drug testing.
#2 The Ban-the-Box movement is growing, what does that mean for me when I am hiring?
Although Ban-the-Box is a well-meaning movement to help people get a second chance after paying their debt to society, it can create some unintended consequences. Since employers need to wait until they have made a conditional offer before checking backgrounds, hiring managers may be discriminating by “guessing” what someone’s background screen is going to reveal based on their appearance, education or ethnicity. Since employers need to justify their decision not to hire based on what is appropriate for the position and whether the candidate’s past is a problem for that particular position, they want to avoid anyone they consider “iffy.” This could be eliminating a lot of good candidates simply because employers want to avoid having to legally comply when taking back a job offer. Use best practices to analyze each position and the exposure of risk to your company based on the access that each applicant would have to financial assets, sensitive or proprietary information and the safety of your workforce. A comprehensive essential job requirement list for each position will help you identify whether an item on your candidate’s background gives you legal grounds for rescinding a job offer. In addition, every job posting needs a disclaimer that follows federal as well as applicable state and local laws governing nondiscrimination. This applies to all phases of hiring, but also for terminations, layoffs, transfers, leave of absence, compensation and opportunities for promotion or training.
#3 Am I allowed to ask about previous salary?
In California, SB1063 prevents disparity in pay for employees that substantially do the same work. There are exceptions if there is a big difference in seniority, merit, quality of work or education and experience. Now, AB1676 clarifies that “prior salary shall not, by itself, justify any disparity in compensation.” You can see where this is going, obviously if a new employee starts out lower because of a previous low salary, they will not catch up to their peers in your company, hence you will be creating a disparity. Over an employee’s career, this adds up to a huge loss, not only in wages, but in retirement savings as well. As a company, you need to correct and prevent this disparity, not only to comply but also to retain your workforce. Employees most affected by this bill are women since, overall, they tend to make less than men that have the same position. Legislation has passed in Massachusetts and at least 8 other states are in the process of looking at bills that would close gender based pay gaps.
Make sure your interviewers do not ask applicants verbally about their previous salary or hourly rate and that you remove any areas on your paper applications or fields on your digital versions that ask these questions.
Partnering with a knowledgeable professional CRA is the best way to be sure your reports are interpreted correctly and that you are compliant with current regulations. Not only can the right partner serve your background screening needs, they can help you implement Best Practices for your Human Resource department – all at an affordable cost. For more information, please contact Genesis Background Screening Services at 866-944-0041 ext 101, email firstname.lastname@example.org or visit www.genesisbackgroundscreening.com
Genesis Background Screening is not a law firm and provides our blogs for informational purposes only. These blogs should not be considered as a substitute for experienced legal advice. Any laws or regulations mentioned in our blogs need to be researched by your company and any questions you have need to be answered by your legal counsel to be sure your organization is within the law and compliant with regulations.