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When it Comes to Drug Testing By Susan K. Hatmaker,
Sutton Hatmaker Law Corporation, susan@suttonhatmaker.com
 
   

It normally is a violation to an individual’s right to privacy for an employer to mandate drug testing except in limited circumstances. Generally speaking, drug testing is permitted as follows:

  • After an applicant receives an offer of employment but before the applicant commences work;
• Based on a reasonable suspicion that an employee is using drugs or alcohol;
• Randomly for safety sensitive employees;
• After an on-the-job injury if a reasonable suspicion exists;
• After the employee participates in a drug or alcohol rehabilitation program; and
• When the employee drives certain trucks identified by the DOT.

Drug Testing of Temporary Employees
For purposes of discussion, assume an individual is employed through a temporary employment agency and assigned to a particular company. After a period of time, the company desires to offer the temporary employee a regular position working directly for the company. May the company drug test that temporary employee aka “applicant” after it makes an offer of regular employment? To do so, the company could risk violating the applicant’s right to privacy and subject itself to damages.

The Legal Rationale for Pre-Employment Drug Testing
The rationale that courts have utilized in authorizing postoffer, pre-employment “suspicionless” drug testing is the fact that the employer has not had the opportunity to observe the applicant at work, evaluate his or her work performance and safety records, and observe the applicant’s tardiness or absenteeism. Because of such circumstances and the fact that an employer invests considerable resources into hiring an employee, the courts have found that the company has a greater need to conduct suspicionless drug testing of job applicants than it does in conducting testing of current employees. In short, with respect to job applicants, the company’s need to hire drug free employees in an effort to maintain a drug free environment outweighs the applicants’ right of privacy.

This rationale does not exist for a company who has employed a temporary employee at its workplace through a temporary employment agency. In that case, the temporary employee has reported to work on a daily basis and performed work for the company. e company has had the opportunity to observe the temporary employee’s work performance, safety record, absenteeism and tardiness record.

Accordingly, while the company may require a temporary employee to undergo drug testing after the offer of temporary employment has been made, the company should not require a drug test when it decides to offer the temporary employee a regular position after the temporary employee has already been working at the company. After all, the company has had the opportunity to observe the temporary employee’s work performance, safety record, absenteeism and tardiness record. As such, if the temporary employee’s performance and work record provides some basis for suspecting that the employee presently is abusing drugs or alcohol, the company will have an individualized basis (reasonable suspicion) for requesting that the particular employee undergo drug testing. On the other hand, if the temporary employee’s performance provides no reason to suspect that he or she is currently using illegal drugs, he or she should not be compelled to sustain the intrusion on his or her privacy that is inherent in mandatory drug testing.

Bottom Line
With respect to drug testing temporary employment agency employees, the company should follow the drug testing rules for regular employees. Once the temporary employee commences work for the company, suspicionless drug testing should not be conducted except in rare situations, such as random drug testing for safety sensitive employees.
 
  Negligent Retention
   

The family of a 64-year-old Virginia woman killed in an ambulance crash filed a $13 million lawsuit against the county and four county employees, including the driver of the ambulance. e family claimed the county was negligent in hiring the driver, whose background showed numerous moving violations, including reckless driving and driving while impaired.

A lawsuit against a school district claimed that it was negligent during and after hiring a teacher-coach later convicted of sexually assaulting a student. e lawsuit claimed the school district did not appropriately investigate reports of inappropriate conduct.

Lawsuits Rise
e number of lawsuits for “negligent retention” has increased dramatically, underscoring the need for a thorough process of evaluating employees, not only in the hiring process, but also during their tenure with your organization.

In fact, according to a recent survey of large companies by Taleo Corporation, a workforce-management firm based in Dublin, CA, (Background Checking: Uncovering the Facts — www.taleo.com/research/):

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27% experienced fraud, employee theft, or workplace violence by a screened employee with a hidden criminal record.
81% do not consider their current background check process effective.
71% have not performed a quality audit of their current screening provider.
66% do not conduct ongoing background checks on employees.

Ongoing Evaluation
A background investigation that helps bring the right person into the organization in the first place is obviously important. But there are also significant reasons to conduct ongoing evaluations to ensure that employees without problems in their background remain employees without problems.

Cases of “negligent retention” involve employers who have been found to be negligent in conducting reasonable investigations to determine employees’ fitness to continue performing their jobs. To avoid these problems, consider reviewing current practices — always in consultation with your legal advisers — to determine if you are taking appropriate steps to evaluate an employee’s ongoing fitness for duty. If not, you may want to introduce a process of evaluating employee backgrounds throughout their tenure with your organization.

Taleo’s Alice Snell says she is seeing an increasing number of companies interested in conducting ongoing background checks.

The decision to do so isn’t necessarily easy, she notes, as there is always a concern about privacy violation. On the other hand, organizations have a legitimate need to know whether someone who was originally a terrific match for the organization is no longer a good match and may, in fact, be a ticking time bomb. Being vetted,
not only upon initial entry into the company, but on an ongoing basis is essential to this, she says.
 
 
Introducing Ongoing
Background Checks

• Develop a background checking policy: how, when and for which positions they will be conducted.

• Most people assume that once they’re in, they’re in. If your policy is clear and you explain the ‘why’ behind it, I think most people will understand,” says Alice Snell of Taleo Corporation.

• Make sure employees are fully aware of the policy. “I don’t think it’s a particular threat to employees as long as they are aware of what the policy is and that it benefits everyone,” Snell says, pointing to growing incidents of workplace violence as an area of particular concern.

• Ensure that all information is treated confidentially. is is as important with existing employees as with potential hires.

• Arrange a legal review of the process and policy from your legal counsel.

• Partner with a credible background-checking organization to ensure that the process is applied appropriately and consistently and that documentation is thorough and complete.
 
 
Incentive Plans
 
   

Supervisors find themselves faced with “employee surprises” on a frustratingly regular basis. Some examples:

  • An employee shows up one morning with a large tattoo that other employees find unnerving. Your employee handbook doesn’t specifically address this issue.
• A staff member has been exhibiting increasingly bizarre behavior, causing coworkers to feel concerned about his mental health — and about their own safety.
• Another employee complains about the body odor of a colleague and insists that something be done.
• A “pushy” employee demands certain special considerations related to his religious background.

What should — and shouldn’t — supervisors do in these situations? What kind of guidelines should you provide them?

Does it Matter?
The first question to ask is, “Does it matter? Is this behavior affecting the employee’s performance or someone else’s performance?” at’s really the bottom line, not whether the supervisor personally approves of the behavior.

The multiple tattoos and piercings of an employee of an alternative rock nightclub is probably not an issue. at same employee working in a conservative banking environment might generate concerns.

Update Policy Manuals
To navigate these variations in expectations and appropriateness, it’s critical to have employee handbooks and policy manuals that deal with them. They should outline expectations and provide examples of inappropriate behavior, clearly stating that the examples are not all-inclusive. Because modern society changes its social fads so quickly, review policies and handbooks at least annually, or unwelcome environment. For example, if someone comes in with a racially offensive tattoo, you should immediately address the situation, even if tattoos aren’t specifically addressed in the policy manual.

Take Action Immediately
Kerry Patterson, coauthor of two Crucial Conversations books (McGraw- Hill, 2002, 2004) says supervisors often make the mistake of not addressing the problem when it first comes up. Their rationale: “If I don’t say anything it will go away. If I do say something it could cause a problem.”

Then it happens again. And again. By that time, Patterson says, the supervisor is becoming more and more resentful. Then, having given tacit approval by turning a blind eye, when the supervisor does act, it’s likely to be in an angry, accusatory way that causes the individual to act defensively, so all goes very badly.

Avoid Special Treatment
Another common issue involves making concessions for certain employees because of their personal circumstances or because of your relationship with them. Any kind of special treatment, however well-intentioned, can create problems, particularly if actions are not consistent with company policy. Problems can arise because of special concessions or additional tolerance for longterm, or previously high-performers — or even for likeable employees. That’s a slippery slope.

Key steps to take are:
  • Establishing, documenting and communicating clear expectations
• Applying these expectations consistently
• Acting quickly to correct behavior not in line with expectations or policy.

Dealing with Behavior
When addressing any type of inappropriate behavior, Patterson recommends that you:

Describe what was expected vs. what was observed.
“I was expecting you to have this done by 3:00 p.m. and you said you would have it done. It wasn’t. I’m wondering what happened.”
Focus on the consequences of the behavior.
People are motivated by consequences. Share that information with the other person so they understand.
Brainstorm solutions.
Decide what’s going to happen next time to ensure this doesn’t occur again. Who’s going to do what by when?
Such fact-based discussions, says Patterson, treat others with dignity and respect, and communicate consequences.
There is, of course, a final step. When employees aren’t working out, the best thing you can do for both employees and company is to help them move on. Using the approach above ensures that this final discussion will not be unexpected.
 
 
Incentive Plans
 
   

The latest buzzword in online training is webinar — a live electronic conference that allows interactivity between a presenter and an audience whose members are often located far away, in many widely separated areas. It isn’t always the best solution, but it can frequently be a cost-effective alternative to seminars and expensive “face-time” meetings.

Unlike webcasts, webinars are live — the presenter provides information via telephone and Internet, and gets real-time feedback from participants who listen to and view the information using their telephones and computers.

The presenter speaks over a phone line and elaborates on information that’s being presented on screen. Audience members can then respond over their own phone lines or speakerphones. The webinar may be recorded and posted to a Web site for viewing at a later time by those unable to participate.

Setting it up
Select a service provider with the experience and servers to host your webinar. When choosing a vendor, consider the following factors:

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Cost Make sure you’re getting a total picture and are comparing apples to apples among providers. Charges are based on either per-user-per-minute costs or as per-participant fees.
Ease of access Delivering and receiving information should both be easy.
Polling capabilities To be effective, the presenter has to be able to throw out a question to the audience and get a collective response.
Interactive capabilities One handy feature, for instance, lets the presenter hear one participant’s question and then decide whether to “share” that question with the group at large.
Simple interface Just because technology can offer lots of whiz-bang options doesn’t mean you have to take advantage of all of them. Clarity and simplicity are keys to communication.

Require recommendations. Before selecting a vendor, insist on a demo and review it from the perspective of an attendee. Watch for sound and visual problems, such as delays, static or visual choppiness. Evaluate ease-of-use and navigation.

Different Approach
Recognize that presenting via webinar is different and can be a little unnerving at first if you’re used to working with live audiences. After all, you can’t see, nor oftentimes hear, your audience, so you’re not getting normal feedback.

Practice your timing beforehand. When a webinar’s time is up, it’s over, unlike a live seminar where you can often squeeze in a few more minutes if discussion runs long. A tip: Reserve more time than you think you’ll need.

Don’t bury participants in repetitive graphics. A slide or two of a diagram or picture is fine. But too much fancy graphic technology defeats interactivity and turns a webinar into a webcast, an entirely different entity.

Webinars are excellent and relatively inexpensive tools for sharing information and providing training and education to multiple people in multiple locations.They reduce travel costs and increase convenience for presenters. But, like any other tool, a webinar isn’t always “the” solution. There will be times when a live, face-to-face presentation or meeting is the only way to go. But, when those options are too expensive or timeconsuming, webinars offer a low-cost, high-impact option.
 
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