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Ohio House Bill 523 legalizing marijuana for medicinal purposes only officially went into law in early September allowing its use in edible, oil, vapor, patch, tincture and plant matter form. Smoking and home-growing of pot remains illegal.
Ohio is now the 25th state to legalize medicinal marijuana.
Although certain aspects of the state law were left intentionally vague by legislators, such as where patients will be able to obtain marijuana, H.B. 523 was fairly specific in providing direction for employers.
Ohio is an at-will state, which means employers can fire an employee for any reason, or no reason at all.
The bill protects that right by NOT requiring an employer to permit or accommodate an employee’s use, possession, or distribution of medicinal marijuana.
Further, it allows an employer to refuse to hire, discharge, discipline, or otherwise take an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person’s use, possession, or distribution of medical marijuana.
In other words, medical marijuana patients could be fired for marijuana use, even if it’s not while at work and a doctor approved it, if the employer has a drug-free or zero tolerance policy on the books.
H.B. 523 clearly states that employers remain free to continue in their operations as if marijuana remained fully illegal under state law, irrespective of the new medical marijuana law.
Although the bill’s language seems to make following the law as straightforward as an employer can reasonably expect, the Occupational Safety and Health Administration’s (“OSHA”) new accident reporting rule complicates matters as federal rules about automatic post-accident drug testing have changed.
According to OSHA, blanket post-accident testing, without cause, infringes on workers’ privacy rights and OSHA is advising employers to limit such testing to situations where drug use likely contributed to the accident.
The combination of legalized medical marijuana and new accident reporting rules makes this the perfect time to review workplace drug policies.
This is the first of a two-part series discussing the impact of legalized medical marijuana on the workplace, specifically as it applies to Ohio businesses. We will continue the conversation next week in this space.
NOTE: The contents of this article are not legal advice for your particular situation. You should neither act nor rely upon anything stated in this article without first consulting your own legal counsel.
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Virtually no HR manager or recruiter will claim that it’s getting easier to hire. In addition to a very competitive job market, qualified candidates seem to be harder to find, tougher to attract and they all seem to be more selective than ever. And that’s just the recruitment side of hiring!
Once a company has their list of candidates paired down, it is becoming increasingly more important to use pre-employment screenings and proper background check services to provide some measure of certainty that the “perfect” person for the job is just that.
HR managers across the country are turning to a Consumer Reporting Agency (CRA) with greater frequency for help in providing proper screening, but even with that assistance many companies are still making errors during this crucial stage.
It’s never a bad time to review your processes to make certain that your company isn’t making one or more of these top five background check mistakes.
Believing Everything Your Applicant Says
80% of all job seekers submit applications and resumes that contain intentionally misleading information.
In addition, according to a recent study by Hayes International, one out of every 38 employees was apprehended for theft from their employer in 2014. On a per-case average, dishonest employees steal over 6 times the amount stolen by shoplifters ($825.36 vs $133.80).
With statistics like that, it’s important to get a clear picture of your applicant before hiring. Depending on the type of job a person is applying for, a credit report, criminal history, and even employment and education history are an important part of a solid background check.
Not Obtaining a Release Form
The Fair Credit Reporting Act (FCRA) regulates the practices of Consumer Reporting Agencies that collect and compile consumer information into reports for use by credit grantors, insurance companies, employers, landlords, and other entities who make eligibility decisions affecting consumers.
One of the most important regulations by the FCRA is to first obtain permission to run the background check.
Section 604(b)(2) of the Fair Credit Reporting Act (FCRA) specifically provides that “…a person may not procure a consumer report…for employment purposes with respect to any consumer, unless—
- a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured…in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and
- the consumer has authorized in writing…the procurement of the report by that person.”
Basically, you must have your applicant complete and sign a release giving permission to run a background check. In addition, the form should be provided to the applicant as a document separate from the application.
Running a Criminal Search Only In the Current County
Criminal records are tried at the county level and are not reported across county or state lines. If you’re only running a criminal history report in the county your company is in, or even the county the applicant currently lives in, you could be missing records. In order to get a clear picture of your applicant’s history, it’s recommended that you run a Social Security Number (SSN) Trace report to identify areas where a person has lived. From there, county criminal searches going back at least seven years should be initiated.
Only Running a National Criminal Database Search
Database searches can be a valuable tool in combination with other background check reports, but remember, they are not a true national criminal history report. If your current background check provider claims that their database has ALL counties in the United States, think again.
Not all counties are online. There is a great variance in the technology used in county courthouses. Some counties still have ledger books or microfilm for storage of court records. Although electronic records may be available they often require Clerk searches to provide details on the case.
State laws also vary. Federal regulations set the standard but several states have instituted restrictions that are different when it comes to reporting crimes. Other states have restrictions as to what can be released when a database is being created; full information is not made available for this purpose. Some repositories simply won’t release the information to be included in a database…period.
Not Taking the Position Into Account
Care must be taken when choosing not to hire based on background check results. The following states have “job relatedness” requirements for the use of criminal history: WI, NY, PA, HI, MO, KS, and Puerto Rico. Criminal histories must be shown to have a detrimental effect on an applicant’s ability to perform the job if they are used as a dis-qualifier.
The EEOC has given more detail about each factor to be considered when hiring based on a background check. The nature and gravity of the offense is to include the harm caused, the legal elements of the crime and the classification (misdemeanor vs. felony). Time since the conviction and / or completion of the sentence is to include evaluation of recidivism. The nature of the job is more than just job title; evaluation of specific duties, essential functions, and environment all need to be considered.
SELECTiON.COM® offers customized reports & solutions for all of our clients. Our staff will help you identify the reports you need to focus on, and develop a background check program that will work for you.
We have a specially-trained and dedicated staff who personally review all criminal records reported, to ensure you’re getting the most accurate information possible. Our knowledgeable customer satisfaction representatives have an average tenure more than 7 years. They can answer any questions you may have and will notify you if there are delays in any part of the reporting process.
Contact us today for your customized background screening solution.
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DATE – 09/02/2016
By: Thomas A. Coz, VP of Legal & Compliance Affairs at SELECTiON.COM®
The new ruling by the Occupational Safety and Health Administration (OSHA) takes effect January 1, 2017, and requires that certain employers electronically submit accounts of injuries and illnesses at their facility. Analysis of this data will enable OSHA to use its enforcement and compliance assistance resources more efficiently. Some of the data will also be posted to the OSHA website.
The rule also includes some anti-retaliation provisions. These officially went into effect August 10th, but OSHA has delayed enforcement of them until November 1st, 2016 in order to have time to reach out to regulated employers.
- Employers are required to inform their employees of their right to report work-related illnesses and injuries free from retaliation.
- Employers must clarify the existing requirement that an employer’s procedure for reporting work-related injuries and illnesses be reasonable and not deter or discourage employees from reporting incidents.
- They must incorporate the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses.
This final ruling comes along with some commentary from OSHA to further explain how this applies to drug testing in the workplace. According to the agency:
Although drug testing of employees may be a reasonable workplace policy in some situations, it is often perceived as an invasion of privacy, so if an injury or illness is very unlikely to have been caused by employee drug use, or if the method of drug testing does not identify impairment but only use at some time in the recent past, requiring the employee to be drug tested may inappropriately deter reporting.
OSHA then concludes that only testing where drug use likely contributed to the accident will be immune from enforcement action under the new rule:
…this final rule does not ban drug testing of employees. However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use. For example, it would likely not be reasonable to drug-test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction. Such a policy is likely only to deter reporting without contributing to the employer’s understanding of why the injury occurred, or in any other way contributing to workplace safety. Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing. In addition, drug testing that is designed in a way that may be perceived as punitive or embarrassing to the employee is likely to deter injury reporting.
For those concerned that the final rule will conflict with drug testing requirements contained in workers’ compensation laws, OSHA claims that this concern is unwarranted.
If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and the final rule would not prohibit such testing. This is doubly true because Section 4(b)(4) of the Act prohibits OSHA from superseding or affecting workers’ compensation laws. 29 U.S.C. 653(b)(4).
For full information on the ruling, visit OSHA’s website.
NOTE: The contents of this article are not legal advice for your particular situation. You should neither act nor rely upon anything stated in this article without first consulting your own legal counsel.
Thomas A. Coz
Vice President of Legal & Compliance
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Database searches can be a valuable tool in combination with other background check reports, but remember, they are not a true national criminal history report. If your current background check provider claims that their database has ALL counties in the United States or even calls their report a national criminal history report, think again. We will outline below a few facts that prevent this from being possible.
Not all counties are online
There is a great variance in the technology used in county courthouses. Some counties still have ledger books or microfilm for storage of court records. Although electronic records may be available they often require Clerk searches to provide details on the case.
Many courts charge access fees
Budgets have been squeezed at all levels of government, leading administrators to look for additional sources of revenue. Access to court records is now viewed as a revenue stream by many local governments. Court access fees have become the norm through the United States.
State Laws Vary
Federal regulations set the standard but several states have instituted restrictions that are different when it comes to reporting crimes. Other states have restrictions as to what can be released when a database is being created; full information is not made available for this purpose. Some repositories simply won’t release the information to be included in a database…period. As referenced above, to some governments, both state and local, this is a source of revenue based on individual searches that are paid for at the time of the search. A database search doesn’t make them any money so they won’t release information in this manner.
Not all laws are equal
Searching court systems for individuals is very complex; spelling, compound names, middle names / initials, those that utilize a nickname or AKA and missing identifiers are just a few examples. Courthouses may offer some help with this in their programs when utilizing on-site methods but those methods are simply not available with a database search. More importantly, not all laws are the same from courthouse to courthouse. In New Jersey, for example, there is no such thing as a felony. Try putting all this information about cases and laws into a database search, and the results will be inconsistent.
These are just a few ways that you can know that you’re not getting a search of all county courthouses in the country in a simple database search.
So What is The Solution?
At SELECTiON.COM® we know that a combined approach will give you all the information you need to make smart hiring decisions. Our Search America® Background Check is THE standard in national criminal database searches. With over 650 MILLION records, from over 1,100 different sources, Search America® is an unparalleled tool to combine with prime source searches to ensure you have the most complete picture available of your applicant. Not only is our Search America® database the largest in the industry, we also take an extra step to provide the most accurate information possible. Unlike our competitors, our Search America® report undergoes a specialized review/ Quality Assurance process in order to reduce the chance of false positives. Combined with our residence-based criminal county search, and our federal criminal background check and you have a solution that can’t be beat. 
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At SELECTiON.COM®, we take customer service VERY seriously. Our goal is to deliver the best customer service in the background check industry every day. One way we do that is by keeping track of FCRA and EEOC regulations and making sure you have the tools you need to stay compliant. Our in-house legal team stays up-to-date with all federal and state regulations regarding consumer reports.
As such, we have made changes to our FCRA Disclosure / Employment Inquiry Release Form and issued an updated version for your use.
This document is available at SELECTiON.COM® and Fastrax Select® under “Forms”. We recommend that you download and update this document on your system, and that you present applicants with the Consumer Financial Protection Bureau’s Summary of Your Rights Under the FCRA as well. The Summary of Rights is also available in the “Forms” area of our websites.
Thank you for trusting SELECTiON.COM® to protect your company through background checks.
