Legal Marijuana in the Workplace in US Southwest

In recent history the use of legal marijuana in the USA has collided with the workplace and no more evident in the US’s Southwest States.  Such States as California, Arizona and Nevada all have some form of legal marijuana either medical marijuana and/or recreational marijuana.  Recreational marijuana is comparable to the use of alcohol.  However, even though on the State level marijuana is legal it is still unclear how marijuana users will fair against the rules of employers and if their job is safe or if they can be fired for such use even if it is legal within the State they work in.

A big question has been circulating through the country and especially in the Southwest…  The question is… How does the recent legality of marijuana use translate into the workplace and how does it affect workplace rules?

In three southwestern states – California, Arizona, and Nevada –rules relating to the workplace are subtly different.

Citizens of California recently voted to legalize the recreational use of marijuana.  Effective January 1, 2017 Californians can buy marijuana at dispensaries without a medical card.  Almost immediately the question of marijuana and the workplace returned to the limelight.

From Lexology.com (May 02, 17):

Way back when, in 2008, the California Supreme Court held that employers need not accommodate an employee’s medicinal marijuana use. And it remains the practice for many employers to enforce drug use policies specifying that the employer has a zero tolerance toward working under the influence of drugs, including newly legalized substances such as THC (the active ingredient in marijuana). Unambiguous drug use policies will put even the most dazed and confused employees on clear notice that these “legalized” substances are not tolerated at the workplace.  lexology.com/library/detail.aspx?g=a8a100c2-2e49-4896-abb3-bc43be27f823

While the use of Marijuana in the workplace being banned is a common thread in all three states, California has the somewhat unique position in regards to random drug testing.

From Lexology.com (May 02, 17)

California employers may have a legitimate interest in enforcing a drug free workplace, but our Constitutional right to privacy generally protects against a random, suspicionless drug tests. Because an employer’s right to drug test relies on a balancing test (is the employee’s privacy interest outweighed by the employer’s interest in keeping the workplace safe and drug-free?), courts commonly look to whether there are less intrusive ways than random testing to protect the employer’s interest, and typically determine that there are.  lexology.com/library/detail.aspx?g=a8a100c2-2e49-4896-abb3-bc43be27f823

ARIZONA

Arizona’s law is more cut and dry.  As long as Marijuana is illegal under federal law it can be cause for dismissal in regards to the workplace.

NEVADA

Nevada is one of the more recent states to legalize medical marijuana.  As with the other two states Nevada does not allow the use or possession of marijuana in the workplace, but does require that employer’s make reasonable accommodation.

As the legalization of marijuana use becomes more widely accepted and has had a long enough time of being legal surely the current confusion with how marijuana use will be tolerated in the workplace should become more clear.  As with alcohol employers do not let their employees show up for work drunk and neither will they let them show up for work high.  But if an employer has a policy of drug testing and THC is one of the banned substances then today that individual if tested positive to the drug could get fired.  However, almost all employers in the country do not care if their employees consume alcohol when they are not working, so eventually marijuana use could be treated the same at which time employees could use marijuana on their own free time without the fear of losing their job.

Even now there will continue to be confusion, different interpretations and the creation of new laws surrounding the legalization of marijuana and how its use will affect the workplace.  A best practice for all hiring managers and HR departments is to clearly define the expectations and company rules of their employees in regards to marijuana use and clearly outline what the consequences of breaking those rules would entail.  It also helps to work with a professional employment background screening company to create or maintain compliant hiring practices.

To read more about this subject read recent press release found here.

Protecting Athletes and Campers with Background Screening

With summer approaching it is time for families to think about what their children will be doing over the long school break.  Summer opportunities for kids include summer camp, athletic camps and other events and ventures that could include staying overnight and living away from parents under the care of camp counselors, coaches, volunteers and other supervising adults.  The concern among others the parents have involve the safety of their children.  And one procedure that helps elevate this concern is that all camp counselors and adults that are going to have unsupervised time with their children is that they pass a thorough background check.

As parents weigh in on the different opportunities available to their children during summer break they often opt to send them to summer camp.

Summer camp comes in a variety of forms:

  • Day camp:  Generally a localized activity covering a single day and filled with a wide variety of activities.
  • Sleep over camp:  These camps can last from a single over-night to extended visits up to a couple of weeks or even months.
  • Theme camp:  A theme can extend to location or activity or both.  A week on a ranch in Montana tending to horses and cattle.  A weekend in the mountains learning about a different topography or geography and so on.

From Laduenews.com (Mar. 30, 17):

Camp constitutes a place for kids to try new things, become more independent and gain self-confidence. Simple challenges for children include building fires, going on hikes or learning to ride horses; more complex situations, though, include understanding how to get along with others, learning to ask for help and trying things outside one’s comfort zone. Letting go can be difficult for parents, but it’s life-changing for kids. (1)

Camp is a great outlet for a child’s energy, time and curiosity.  As long as it takes place in a safe environment leaving the parent’s only worry being about how homesick their children might become.  Finding out that such a camp conducts rigorous background checks on all their staff brings another layer of safety that parents demand.  Included in this background screening process is always a thorough criminal background check that also queries every US States sex offender registries ensuring the camp staff has not had any sexual offenses in the past.

As a parent it is important to ask the camp what kind of background screening they conduct prior to letting them work in the camp with children.  When looking for a summer camp for a child one key component of any good camp is the thoroughness of the background check including interview and reference checks.  A complete background check is a powerful tool to utilize within any camp related screening program.  A top-notch background screening program including a solid interview dramatically increases the protection of a child from potential risk and malfeasance.

To read more about this subject read recent press release found here: http://www.criminalbackgroundrecords.com/news/2017-04-19-Its-Time-to-Protect-Young-Athletes-and-Campers-with-Thorough-Background-Screening.html

Elder Abuse Growing

The aging nation wants to believe that they will be safe and taken care of as they enter the elder years.  However, headlines show a growing epidemic of elder abuse across the USA.  Often these stories go untold and are not reported, however some of them are.  Below are some recent news articles regarding abuse to the elder population.  This highlights the need for caregiver background checks on those hired to work with the elderly and can be a great deterrent for malfeasant individuals looking to take advantage or abuse the elderly.

The risk of abuse grows the older a person gets and often the abuse comes from those hired to protect, assist, or help the elderly in everyday activities.  Illustrations of elder abuse from caregivers are rampant on the internet and stories of abuse have reached numerous news sites such as these.

Recently, in the Village of Oak Creek, Arizona, a caregiver was arrested for stealing from an elderly woman.

From VerdeNews.com (Feb. 22, 17):

…a 42-year-old caregiver of Village of Oak Creek, was arrested after the Yavapai County Sheriff’s office confirmed her as a suspect accused of stealing more than $100,000 from an elderly Sedona woman.

A family member of the legally blind 89-year-old victim contacted the Yavapai County Sheriff’s Office last month to report concerns of caregiver theft. The caller indicated it appeared more than $100,000 had been stolen from the victim, according to a news release from YCSO.  verdenews.com/news/2017/feb/22/caregiver-arrested-after-allegedly-stealing-190k-e/

Forms of abuse happening in the country can have a much greater impact than theft by hired caregivers.  An extreme situation occurred in Texas.

From KCENTV.com (Feb. 21, 17)

Emily Springer, 96, died just four months after she was seriously injured in a vehicle crash. According to her family, a Visiting Angels caretaker responsible for Springer failed to properly strap her into the van, which caused her to fly out of her handicap seat and into the dashboard.

… The caretaker involved was indicted for injury to an elderly person and is awaiting criminal trial.  kcentv.com/news/local/elderly-woman-killed-by-negligent-caregiver-civil-suit-begins/409614262

In the end it is extremely important to perform thorough background checks on caretakers prior to giving them unsupervised access to the elderly.  This huge deterrent should include criminal background checks and reference checks at a minimum to help thwart the potential for abuse.

A complete in person interview as well as verification checks are also very helpful in vetting caretakers before they get hired to care for the elderly.

To read more about this subject read recent press release found here: http://www.criminalbackgroundrecords.com/news/2017-3-21-Elder-Abuse-A-Hidden-Epidemic.html

Criminal Records and the Trump Era

In recent years the use of criminal background records in employment screening and tenant screening have been making headlines across the country.  The Obama Administration attempted considerable efforts in reforming the criminal justice system.  Also the Equal Employment Opportunity Commission (EEOC) has put forth a guidance on the fair, lawful and legal use of criminal records as part of the employment screening process.  Additionally “ban-the-box” legislation has been adopted in many States and jurisdictions across the USA.  All these changes and efforts are meant to discourage and even eliminate discrimination in the hiring process.  They also seek to give individuals with a criminal record a second chance at reintegration with mainstream society by getting a fair chance at employment along with being able to secure decent housing.

Now under the new Trump Administration criminal records continue to be in the spotlight.  Under the authority of the President Immigration and Customs Enforcement or ICE has been tasked with greater urgency in deporting illegal aliens with criminal records.

From the Washington Examiner (Feb. 12, 17):

Stephen Miller, the president’s policy director, said, “the cases that I’m familiar with…have to do with removing criminal aliens, individuals who have criminal charges or convictions against them. And that’s what’s been taking place all across the country. And the effect of that is going to be saving many American lives, American property and American safety. (1)

A criminal record can follow an individual for years and create a challenge for finding employment as well as housing.  Certainly, evidence of a criminal record for someone living inside the United States will cause immediate expulsion.

Swift changes in US Law by Executive Order by the Trump administration should be an eye opener for all Human Resource personnel and hiring managers to review and perhaps update their employment screening policies.  How this new administration will affect background screening and the use of criminal background checks is still unknown but making sure hiring policies and procedures are up to date and complaint is certainly worth the effort.  It is widely recommended that companies and organizations work with a professional third-party employment screening company during this process as it is considered a best practice in this industry.

To read more about this subject read recent press release found at: http://www.criminalbackgroundrecords.com/news/2017-02-15-Criminal-Records-at-Home-and-Abroad-in-the-Trump-Era.html

Caring for At-Risk Populations

A large chunk of the At-Risk population in the USA is comprised of the elderly.  In a country with an aging population, it is important that laws and regulations are in place to properly care for this part of the community.  An absolute must before letting a caregiver in a home with unsupervised time with an elderly patient is a thorough caregiver background check.  This should include a criminal background check, sex offender background check, any necessary credentials check and of course reference checks.

Without proper insurance hiring caregivers can be very expensive and puts a tremendous financial burden on the family whose member needs personal care.  Often times in such situations low cost care is sought out, however these people may not have adequate credentials or resident status to appropriately care for an elderly patient.  This situation could be disastrous and opening up the opportunity for elder abuse.  It is important that caregivers become qualified for such a profession by going through adequate training to reach sufficient qualifications.

When it comes to at-risk populations including the elderly, it is imperative that caregivers undergo a thorough background screening prior to entry into the home.

Elder abuse comes in many forms and families should be well aware of the different types.  Some may be overlooked or held inconsequential, but each are equally disruptive and devastating to the elderly.

The Department of Health and Human Services Administration for Community Living provides information on their website regarding elder abuse and provides the following categories:

From acl.gov (https://acl.gov/newsroom/observances/WEAAD/docs/WEAAD-Factsheet-How-To-Answer-Tough-Questions.pdf)

Elder abuse refers to intentional or negligent acts by a caregiver or trusted individual that causes harm to a vulnerable elder. Elder abuse takes many forms, including:

  •    Neglect
  •    Physical abuse
  •    Sexual abuse
  •    Financial abuse and exploitation
  •    Emotional or psychological abuse and neglect (including verbal abuse and threats)
  •    Abandonment
  •    Self-neglect

In the end, the nation as a whole must take precautions to protect the aging population of this country.  That includes performing thorough background checks and getting reference checks prior to letting a caregiver in the home thus helping to protect the vulnerable part of the community.  There are several well qualified third-party background screening companies that can assist families and organizations obtain the proper background reports.  Having access to these background reports makes it easier to determine whether or not a potential caregiver is going to treat the elder patient(s) with the dignity and respect they deserve.  CriminalBackgroundRecords.com is one such company that can perform caregiver backgrounds for the purposes of protecting the elderly.

To read more about this subject read recent press release found at: http://www.criminalbackgroundrecords.com/news/2017-01-13-Caregiver-Background-Checks.html

Background Screening 101 Part 2

The background screening process may seem simple to those outside of human resource departments.  The process seems to be placing an Ad for a job position, then sorting through resumes, then having interviews for the candidates that look the most promising and then picking the best person for the job and hiring them.  This process as highlighted appears to be straight forward and rudimentary.   However, every employer needs to understand the laws that govern the employment screening industry and must remain compliant with such laws and guidelines to avoid legal action from the Equal Employment Opportunity Commission and other agencies.  These type of agencies work to ensure that the hiring process is non-discriminatory and that all applicants have a fair chance at gainful employment.

The truth is that hiring is a complicated process these days as employers and hiring agents need to make sure their hiring process is legal and ethical and does not conflict with US Federal, State and Local laws and guidance’s.  The core of the hiring process is employment screening both pre-employment screening and post-employment screening.  This process is essential to any sound hiring practices and helps verify information on a resume and looks into the life experience and background data of a prospective employee.  Employers should utilize a third party background screening company to help them gain access to these necessary background reports and also to assist employers in creating or maintaining background screening policies that are compliant with all pertinent laws and regulations.

The use of public records, specifically consumer credit reports, is regulated by the Fair Credit Reporting Act (FCRA) and is enforced predominantly by the US Federal Trade Commission and the Consumer Financial Protection Bureau. The FCRA also has clear rules in its section covering employment background checks.  It states that all employers using consumer reports including criminal history reports must get written permission from the job applicant to run the background checks and must tell the applicant if the criminal record report was in-part or wholly responsible for the applicant not getting hired.  This adverse action letter must be given to the applicant along with a summary of their rights under the FCRA and the applicant has a right to dispute these records along with other rights.

Other than credit information consumer reports like criminal history reports are protected and enforced by the Equal Employment Opportunity Commission under the authority of the Civil Rights Act of 1964 and its various updates and expansions.  There are clear rules that employers have to abide by when selecting new employees.  The FCRA and EEOC make it clear how criminal records are to be utilized during the employment screening process through its documents and guidance’s.  In the end it is a best practice for employers to work with employment screening companies both for gaining access to pertinent background reports like criminal reports, SSN reports, driving records, sex offender reports and various other reports or verifications/reference checks as well as to help them create or maintain a legally compliant background screening and hiring policy.

To read more about this subject read recent press release found here.

Time to Review Background Screening Policies

As the year is nearing its end it is definitely time for employers to review their employment screening policies.  2016 brought about many new laws that affect what information/reports can and cannot be used in the hiring process.  Ban-the-box legislation and the recent legalization of recreational use of marijuana in many States alone requires current pre-employment screening policies to be updated to properly reflect these new legal environments.

All over the United States most businesses and organizations perform background checks on new prospective employees.  These background checks include criminal background checks and other reports that now have rules applied to them for when and how you can use them.  Information gathered from background checks deliver vital information to hiring managers looking to sufficiently vet new applicants before hiring.  However, these hiring managers in many States cannot perform criminal history checks until an initial offer is made.

Background reports can be drawn from several sources including public record repositories, county courthouses, the social security administration, unlawful detainers and internet databases.

The use of public records, specifically consumer credit reports, is regulated by the Fair Credit Reporting Act (FCRA) and is enforced predominantly by the US Federal Trade Commission and the Consumer Financial Protection Bureau. The use of other documents, such as criminal history reports, is protected and enforced by the Equal Employment Opportunity Commission under the authority of the Civil Rights Act of 1964 and its various updates and expansions.  There are clear rules that employers have to abide by when selecting new employees.  The FCRA and EEOC make it clear how criminal records are to be utilized during the employment screening process through its documents and guidance’s.  With the reality of such entities enforcing laws associated with hiring practices now is the time for employers to review their background screening policies and make the necessary updates to remain compliant in this new legal environment.

To read more about this subject read recent press release found here.

New California Law to Protect Juvenile Criminal Records

New California law protects people by prohibiting the use of certain juvenile criminal records during the pre-employment screening process.  Governor Jerry Brown signed AB 1843 into law in September 2016.  It is typical that California is the State leading the way in protecting the rights of individuals as they have been in the past.  With 1843 passed more states across the country will take notice and perhaps follow California’s lead.

The new law amends the labor code broadening the types of criminal background records that employers can see.  In this case it is prohibiting employers from inquiring and considering the use of juvenile criminal records in the hiring process.  When the jurisdiction was a juvenile court and the criminal records apart of the juvenile offense history then those records are considered off limits to employers and they may not use those records as part of their hiring decision process.

AB 1843 updates the labor code in regards to the use of juvenile criminal records in the hiring process.

From SHRM.com, the leading Human Resources industry group (posted Oct. 04, 16):

A.B. 1843 amends the labor code to broaden the types of “off limits” information that employers may not consider by prohibiting employers from inquiring about and considering information concerning or related to “an arrest, detention, process, diversion, supervision, adjudication, or court disposition” that occurred while the applicant or employee was subject to the process and jurisdiction of a juvenile court (juvenile offense history).

The bill also excludes from the labor code’s definition of “conviction” an adjudication by a juvenile court or any other court order or action taken with respect to a person who is under the process and jurisdiction of a juvenile court.  shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/california-juvenile-records-.aspx

As new laws such as 1843 are passed across the country it is clear that employers need to take note of such changes and make any necessary changes to their employment screening practices in order to stay compliant with an ever changing legal landscape.  As California has taken the lead on making it easier for individuals with a juvenile criminal past to get a job by prohibiting employers from using this information, it is in step with a national movement to clear the slate for adult past offenders and open the door for those with a criminal past to achieve gainful employment and be successfully integrated into a productive and crime free society.

To read more about this subject read recent press release.

Criminal Records and Ban-the-Box Legislation Still a Struggle

Pre-employment background screening incorporates criminal background checks into its process but Ban-the-Box legislation is changing the legal landscape.  Originally thought to help level the playing field for applicants looking for work ban-the-box has recently met criticism.

With the simple goal of eliminating the question of criminal history on job applications ban-the-box legislation has swept across the nation.  Proponents of this movement believe that this one question severely limits the fair and equal opportunity of all job candidates.  Currently the USA has the highest incarceration rates in the world, and more needs to be done to reintegrate past offenders into free society and eliminating the question of past criminal history it is believed would be a big step in achieving that end.

It is widely believed that recidivism is more likely if a previous offender is released back into society and cannot get a job.  Certain States and jurisdictions have their own laws that can limit how far back an employer can look into the past of an applicant’s criminal history.  This would definitely help applicants that have been out of prison for over 7 years or that have criminal background records over a certain time frame, but it wouldn’t help people that have just been released from prison or recently accumulated a criminal record that did not require prison time.  However, even with ban-the-box legislation the outcome in at least one study showed that employers may discriminate based on race when they can’t ask if the applicant has a criminal history.

Recent studies indicate that ban-the-box legislation may not be helping when it comes to race as a proxy for criminal history.

From the Nation Law Review (NatLawReview.com, Sep 09, 16):

New research by Amanda Agan, a Princeton economist, and Sonja Starr, a legal scholar at the University of Michigan, suggests that, at least in some cases, “ban the box” rules may result in the use of race as a proxy for criminal history. This may increase racial disparity in hiring– even in the absence of criminal histories. (1)

Troubling conclusions came from this research.

The racial gap in callbacks before the ban the box laws was 7% at companies that asked applicants about criminal history. After the laws were enacted, it went up to 45%, suggesting that black applicants were presumed to have a criminal past if the prospective employer was not permitted to inquire. (2)

Although this recent study shows clearly that in this area ban-the-box was not helping minorities and in fact making it even more difficult for them to obtain gainful employment.  At this time more studies are needed and the concerted goal of the EEOC, HUD and FCRA are determined to make it easier for past offenders to get employed and become productive citizens.  Also with the highest incarceration rates in the world it is imperative that we reevaluate past offenses especially those that were non-violent and help these people get their criminal records expunged and enter the employment market with a clean slate.

To read more about this subject read recent press release found here: http://www.criminalbackgroundrecords.com/news/2016-10-05-Criminal-Records-and-Ban-the-Box-a-Continuing-Struggle.html

Ban-the-Box Type Policies May Impact College Admissions

Ban-the-Box legislation has swept across the country in recent years and is now being considered by institutions of higher learning both Colleges and Universities.  As legislated by state and local jurisdictions as well as several private companies “Ban-the-Box” eliminates the question of criminal history on the application and controls when a criminal background check can be conducted.

From TheAtlantic.com (Apr. 29, 16):

(1)   The long-running “Ban the Box” campaign is now gaining ground at colleges and universities. The movement aims to protect job, and now student, applicants from being asked about their criminal histories and was recently bolstered by President Obama, who is taking executive action to ban the practice at federal agencies. Campus officials say the background question helps them learn as much as possible about prospective students and allows them to take steps to keep everyone on campus safe. But opponents say the question—which requires prospective students to check a box if they have criminal histories—is an undue barrier that harms certain groups of students.  theatlantic.com/politics/archive/2016/04/ban-the-box-comes-to-campus/480195/

New York University now will no longer consider every criminal conviction on an applicant’s record regardless of severity as part of their undergraduate admissions process.  Instead the University will use a new set of questions such as has the applicant been convicted of or disciplined for violent incidents.  Additionally research has shown that the question of past criminal history records does not predict future behavior in a significant way.

Also from Gothamist.com (Aug. 02, 16):

(1)   Studies have shown that having the box on college applications doesn’t make campuses any safer, and NYU reached the same conclusion after an internal assessment of its own disciplinary records. “NYU took a look at the NYU disciplinary records of enrolled students who had checked the box against the overall undergraduate NYU population,” Knoll-Finn stated. “We found no meaningful differences in the rates of infractions.”  gothamist.com/2016/08/02/nyu_crime_disclosure_box.php

Changes in background screening have been developing very quickly over the past few years with major changes being seen in the employment screening arena and the tenant screening arena.  It was just a matter of time before Colleges and Universities started to examine their own application process and admissions policies.  Starting with what questions to ask for along with how they evaluate information derived from student applications.  This new trend of admission polices being seriously scrutinized had led to meaningful changes to the standard admission application process.  This new readiness highlights a new area where third party background screening companies can be utilized to assist Colleges and Universities make significant changes to their applicant background screening process.  These background screening companies can assist the institutions of higher learning to develop and conduct applicant background checks that is compliant with all relevant laws and that help students with a criminal past have a shot at bettering their life.

To read more about this subject read recent press release found here: http://www.criminalbackgroundrecords.com/news/2016-8-24-Ban-the-Box-Type-Policies-May-Impact-Public-and-Private-Institutions-of-Higher-Learning-Admission-Policies.html