As of May 2015, twenty-three states and the District of Columbia have legalized the possession of marijuana for medical use, and four states and the District of Columbia have legalized possession of small amounts of the drug for recreational use. However, federal law still classifies marijuana as a Schedule I drug?one with no currently accepted legal use. Meanwhile, the ?Ban the Box? movement, designed to discourage employers from inquiring about conviction records during the application process is on the rise just as the EEOC has placed restrictions on the kind of background check information it deems relevant to an employer. Against this backdrop, employers might reasonably question whether background checks and/or drug screens are worthwhile. Yet, the reality is that use of and reliance on background checks and drugs screens is actually on the rise. And for good reason, the information one can secure through a thorough and appropriately conducted background check and/or drug screen remains highly relevant. The key to conducting background checks and to using the information obtained is to ensure that your practices are compliant with the various standards now imposed on such use.
So, what is an employer to do ? assuming that it wants to find employees who ?fit? and it has reason to believe will comply with the same requirements that its clients require of it? Here are a few tips:
- Put in place a FCRA Compliance Policy and Guideline that provides structure and guidance for those requesting background checks and the resulting information. Review it regularly for compliance.
- Ask for consent. Require an applicant release form be completed and signed.
- Ensure screening inquiries are related to the position to be filled. (Your screening provider should be able to assist with this question. Some organizations have matrices that detail what areas are to be checked before an applicant is onboarded. There also may be government regulations that govern how employers should perform background screening.)
- Remember to read the report. Far too often, employers run reports but do nothing with the information secured.
- Remember to carefully consider only the information relevant to the position and/or information that is not deemed ?stale? by either federal or state laws or guidelines.
- Know and comply with local laws. In the U.S., it?s important to ensure that both your organization and the screening provider comply with the Fair Credit Reporting Act (FCRA) rules and any relevant ?ban the box? legislation, restricting questions about criminal history on the employment application.
- If an adverse employment decision is made based on information secured, remember to comply with the Notification Requirements outlined in the FCRA.
- Remain up-to-date on screening guidelines. Employers bear the burden of complying with the changing laws from various jurisdictions and regulatory agencies.
- Seek legal advice and counsel, particularly when unique issues are presented.