Workplace Compliance Trends: Ban the Box and Drug Testing

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Across the country there are 32 state and local ban the box laws affecting private employers.

In the ever-changing world of pre-employment compliance, it's important to stay on top of new legislation as well as new recommendations regarding certain statutes. Additionally, it's important to review not only federal and state level legislation – but also what laws have been enacted at the municipality level. It is your responsibility to ensure your business is compliant in the hiring lifecycle.

In recent state legislative sessions, five compliance trends have emerged: pay equity; data privacy; ban the box, or fair chance, laws; and training (specifically sexual harassment prevention and drug testing). First, let's examine ban the box and drug testing:

Ban the Box/Fair Chance Laws

Ban the box, or eliminating the criminal history question from an application, has been in effect for almost a decade. This year New Mexico and Colorado enacted ban the box laws specifically addressing criminal history. The intent behind the ban the box and fair chance legislation is to limit or eliminate blanket criminal history policies when hiring. The movement started with banning the checkbox on job applications for self-disclosed criminal history, which employers were using to filter job applications.

Following that trend, some states took this much further, creating fair chance laws, which go beyond removing the checkbox on job applications to requiring employers to perform a thorough and often documented individualized assessment of the conviction history against the job duties before denying employment.

If they do deny employment, these fair chance laws often mandate that the employer explain to the candidate which conviction(s) led to their adverse employment decision. A trend in recent years is states taking a middle ground between ban the box and fair chance laws by removing the filtering question and forcing employers to deny employment only if the conviction has job applicability (i.e., an individualized assessment). Two laws enacted this year in Colorado and New Mexico were straight ban the box laws, prohibiting employers from asking candidates on the initial application about their criminal history.

Across the country there are 32 state and local ban the box laws affecting private employers, including states such as California, Washington, New York, and Massachusetts, and cities including Austin, New York City, Chicago, and Kansas City. There are still five states with similar legislation pending.

So what does all this mean for employers? They should be reviewing hiring policies, interview questions, career site questions, pre-adverse action notice text and adverse action notice text as best practices.

Drug Testing

As more states legalize marijuana both recreationally and medically, they are also passing laws to provide protections for candidates who use the drug in jurisdictions where it is legal. These laws will vary in the kinds of protections they offer for employers and/or employees. Some laws prevent an employer from refusing to hire or promote a candidate because they use marijuana for medical purposes. Others require employers to remove drug testing for marijuana altogether unless certain exceptions apply. Many of the laws still allow employers to adopt reasonable drug-free workplace policies concerning drug testing and using marijuana in the workplace as long as the policies are applied in a non-discriminatory manner.

Recently, Illinois was the 11th state to legalize the recreational use of marijuana, and the first to do so through the legislature instead of a ballot initiative. The bill also included similar provisions to the ones mentioned above about reasonable zero-tolerance workplaces. This year Nevada passed a law prohibiting employers from denying employment to candidates because of the presence of marijuana in a screening test.

While there are certain exceptions to the law – such as if an applicant is applying for a position as a firefighter or emergency medical technician or the position requires an employee to operate a motor vehicle for which federal or state law requires screening tests – employers cannot refuse to hire a prospective employee due to the results of a drug test indicating the presence of marijuana. In response to Oklahoma's recent legalization of medical marijuana through a ballot initiative, the legislature passed employment protections for those who will now be medical marijuana license holders.

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