I just applied for a job at a prestigious company, but before they’ll even consider me they insist on a urine sample. Can I legally refuse?
You can always refuse, but you probably won’t get the job. Since the “Just Say No” campaign of the early 80s, drug testing has become an unfortunate part of life at many companies. It’s also been used for more than just keeping addicts off the payrolls. According to a 2001 survey by the American Management Association (AMA), employers also use such tests to deny employment based on an applicant’s medical history, HIV status, presence of sexually-transmitted diseases, and whether they’re pregnant. Companies have also successfully used drug test results to deny workers’ compensation claims. And even if you’re perfectly clean (and healthy, and not with child), you could still get nixed due to false test results (see Table 4-3).
Table 4-3. You could be a druggie...or you may just have a head cold.
|
Legal Substance |
May show up us... |
|---|---|
|
Sources: Erowid, Community Health Gate | |
|
Ibuprofen |
Marijuana |
|
Cold remedies or diet pills |
Amphetamines |
|
Novocain |
Cocaine |
|
DHEA |
Anabolic Steroids |
|
Poppy seeds |
Opiates |
If you’d rather collect unemployment checks than undergo a drug test, you still have a few options. To wit:
Check local laws. Some municipalities (such as San Francisco) prohibit drug screening for people in non-safety-related professions. For a guide to drug laws by state, visit the Drug Policy Alliance site (http://www.drugpolicy.org/statebystate/) or the National Conference of State Legislatures (NCSL) site (http://www.ncsl.org/programs/employ/drugtest.htm).
Find an employer that doesn’t test. According to AMA surveys, 67 percent of companies test for drugs, down from a peak of 81 percent in 1996. (The AMA study also notes that the level of pre-employment screening remains high; most of the decline is due to companies conducting fewer tests on current employees.)
If you already work for a company that tests, try to convince your employer to substitute “impairment testing” in place of drug screens. Impairment tests measure reaction times and other factors that determine how well individuals actually perform their jobs, instead of simply scrutinizing the contents of their bloodstream. For more on impairment testing, see The National Workrights Institute’s page at http://www.workrights.org/issue_drugtest/dt_impairment_testing.html.)
An extensively researched (but unofficial) FAQ about drug tests and the ways people have tried to defeat them can be found at the Erowid site http://www.erowid.org/psychoactives/testing/testing_faq.shtml#3. Be aware, however, that several states make it a crime to falsify the results of a drug test.
I am inches away from getting a big job, but my future employer insists they need to do a background check on me first. I don’t like the idea of my prospective employer digging into my past. Can I do anything about it?
Well, you can say no. Under the recently revised Fair Credit Reporting Act, a prospective employer has to obtain your permission before it can run a background check on you. (The bad news is that if you refuse, you’re less likely to get the job.) If the company decides not to hire you because of something that turned up in the report, it must give you a copy of the report, as well as the opportunity to dispute anything you feel is inaccurate. But if the employer says it made the decision based on factors other than your background check, then all bets are off.
If you live in California, you can get a copy of the report regardless of whether it was a factor in their decision. Other state laws may provide further rights (see the National Conference of State Legislatures’ page on laws concerning job applicants and credit checks at http://www.ncsl.org/programs/employ/jobapplicantcreditchecklaws.htm). The Privacy Rights Clearinghouse (PRC) offers an extensive fact sheet on background checks at http://www.privacyrights.org/fs/fs16-bck.htm.
But the law only applies to information gathered by third parties. So, for example, if a company does its own background checks—and never uses information from a credit reporting agency—it’s not subject to the limitations of the FCRA. Any company that wants to be exempt from these restrictions could hire its own gumshoes as employees. According to Frederick S. Lane, author of The Naked Employee, one-third of the nation’s 40,000 investigators are employed by corporations.
Tip
Here’s a tip from the PRC: if you agree to a background check, ask your potential employer what background screening company they use. By law, that firm must give you access to the dossier they compile—which can include information not provided in the report given to the employer.
For many jobs, such as those dealing with child care and virtually all governmental positions, background checks are mandated by state or Federal law. For tips on how to keep a background check from coming back to bite you, see the sidebar "Be Your Own Gumshoe.” Table 4-4 lists what a background check can reveal.
Table 4-4. What can a background check reveal? A lot.
|
What may be part of a background check |
What’s left out a |
|---|---|
|
a Applies only to background checks using a third-party consumer reporting service, as per the FCRA. | |
|
b In most instances, your permission is required before employers can access this information. | |
|
Source: Privacy Rights Clearinghouse | |
|
Driving records |
Bankruptcies more than 10 years old |
|
Employment history |
Civil suits more than 7 years old |
|
Property ownership |
Tax liens more than seven years old |
|
Court and Criminal records |
Accounts on collect after 7 years |
|
Medical records b |
Arrests (but not convictions) after 7 years |
|
Credit history & bankruptcies | |
|
Personal and character references | |
|
State licensing records | |
|
Military records b | |
|
Workers compensation history | |
Tip
The Americans with Disabilities Act was designed to prevent employers from discriminating against physically challenged but otherwise qualified candidates, yet its privacy protections can extend to anyone seeking gainful employment. For example, the ADA prohibits employers with 25 employees or more from asking health-related questions that could indicate evidence of a disability prior to the job offer. Banned questions include:
Do you have a heart condition?
How many days were you sick last year?
Have you ever filed for worker’s compensation?
Have you ever been treated for mental health problems?
What prescription drugs are you currently taking?
For more on what employers can and can’t ask under the ADA, see http://www.eeoc.gov/facts/jobapplicant.html.
That depends on how big a job you’re applying for, as well as where you live. The Fair Credit Reporting Act requires companies that use a third-party consumer reporting agency (e.g., Experian or ChoicePoint) to properly dispose of the records after the check is completed. That includes electronic copies as well as paper. Sounds good, right? But in this law there are some gaping holes that still allow some employers (and potential employers) to hang on to your personal information.
For one thing, the law never defines what it means by “proper disposal.” So, for example, a firm could merely throw out the paper report and delete electronic copies, which, as we know, doesn’t really erase anything (see Chapter 2, "Complete Delete“). A dumpster diver or a moderately knowledgeable computer snoop could easily gain access to your report.
Worse, the law doesn’t apply to anyone who’s up for a job that pays more than $75,000 a year, which is where the most extensive background checks are performed. It may not apply to some smaller businesses (those details were still being worked out as this book was being written). And if your employer ran a check on you a year ago, tough luck—the law only applies to background checks that took place after December 1, 2004.
The solution: ask to see what’s in your file. Though most private employers aren’t obliged to show you, they might do it anyway out of goodwill. And be sure to quiz your company’s HR department about how it secures personnel records (see "Beware Employee ID Theft,”).
Before I took a job at my company, I was asked to take a 200-question personality profile that probed me for all kinds of invasive information. What can happen to my answers?
Just about anything, so be careful what you say. Tena Fiery of the Privacy Rights Clearinghouse advises job applicants to beware of open-ended questions, such as “Have you ever been arrested?” The Federal Credit Reporting Act limits employer queries about arrest records to the last seven years (though there is no time limit for convictions). Equal Employment Opportunity laws also limit questions relating to gender, race, sexual orientation, and certain medical conditions (such as pregnancy).
If the questions are inappropriate to the job you’re applying for, you could sue the employer under several privacy torts, says Don Harris, principal of HR Privacy Solutions (http://www.hrprivacy.com), which advises multinational corporations on personnel privacy issues. (Fear of lawsuits may be one reason why the number of companies requiring psych tests for job applicants dropped from one-half in 1998 to one-third in 2001, according to those relentless survey-takers, the American Management Association.)
In July 2000, Rent-A-Center paid a $2.2 million settlement to some 1200 applicants who were asked to fill out a 502-question form that asked, among other things, whether they had ever engaged in “unusual sex practices” (making one wonder exactly what kind of appliances Rent-A-Center carries). In December 2001, Wal-Mart agreed to pay a $6.8 million settlement after the Equal Employment Opportunity Commission sued the mass-market retailer for using a questionnaire to discriminate against handicapped applicants—a violation of the Americans with Disabilities Act.
Of course, some companies will still ask illegal questions, intentionally or otherwise. A reasonable response is to sidestep questions that make you feel uncomfortable without making a Federal case out of it. If a potential employer asks if you’ve ever been arrested, you can say something like “They keep trying, but they’ve never been able to catch me” or “my record is clean,” without going into the details of some youthful mistake from 20 years ago. (The Technical Job Search site offers more tips on how to handle unlawful questions at http://technicaljobsearch.com/interviews/illegal-questions.htm.) Then again, if a company insists on asking nosy questions about your past (or your unusual sex practices), maybe you don’t want to work there.
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