Can Drug Testing Your Employers Save Money?

Drug testing can make you money said Hire Image. I have said this for years and people usually look at me as if I’ve been smoking something. What they don’t realize is that if they explore the state financial opportunities that exist, they can see a significant return on their money. However, in order to do so, compliance with the state’s rules, including the filing of paperwork, is necessary. Two recent cases, one in Florida and the other in Tennessee, make this evident. Before we get into the details of the two cases, let’s set the stage.

Today, nineteen states provide some form of a rebuttable presumption of intoxication defense to a workers’ compensation claim.  Seen on the map below, the states highlighted in green offer a rebuttable presumption of intoxication. However, the cause must be established. The states highlighted in blue provide a rebuttable presumption of both intoxication and cause. In those states, the burden then shifts to the employee to show that she or he was not intoxicated and/or that something other than intoxication caused his or her injuries.

If the employee is unable to rebut the presumption, the claim is denied. Some states require paying for the medical care that the injured employee received and, in a few states, the presumption is unavailable if the injured employee died. If you are operating in one of these states, you should seriously consider complying with the financial opportunity that is available to you. If you don’t utilize this defense, you are leaving cash on the table.

Another cash opportunity, also involving workers’ compensation, can be found in the twelve states highlighted in yellow below.

These states offer a discount on your workers’ compensation premiums annually (usually ~5%) if you voluntarily comply with the rigid rules detailed in most of the state’s statutes and regulations.

As seen in the following two cases, if you fail to comply with the rules in either of these financial opportunities, you may not receive the benefits available.

Florida Case

On April 18, 2018, a Florida Court of Appeals reversed a lower court’s decision to deny death benefits to the spouse of a man struck and killed by a vehicle while walking from a bar along the road. The employee, a construction helper assigned to an out-of-town job, was returning to his hotel. Surveillance video showed the employee “weaving in and out of the road” shortly before the accident, but the actual accident was not seen.

The employer raised the rebuttable presumption of intoxication defense available in Florida (sec. 440.09(3) and 440.09(7)(b)). The Court of Appeals found that the employer and carrier were not entitled to the defense “due to their non-compliance with…the procedures set forth in the administrative rules.” Without the presumption, the employer/carrier had to show “by the greater weight of the evidence, that the work-related injury was occasioned primarily by the intoxication of the employee.”

The Court of Appeals concluded that the employer/carrier failed to meet that burden. The potential cost to the employer/carrier was up to $150,000 in compensation and up to $7,500 in funeral expenses.

Tennessee Case

On February 8, 2018, the Tennessee Bureau of Workers’ Compensation Appeal Board (“Board”) found that an employer that had participated in the State’s Drug-Free Workplace program in the past was not entitled to the presumption available in that program because they hadn’t filed the required paperwork with the State to cover the time period of the accident. Had they filed the application for participation in the program they could have raised the rebuttable presumption that the injured employee’s drug use (marijuana) was the proximate cause of her injuries she sustained in an automobile accident while at work said Hire Image. The employer asserted that it’s past participation in the program and its “substantial compliance with the statutory requirements” should entitle it to the program’s benefits.

The Board disagreed indicating that not only had the General Assembly imposed certain program requirements, but it also required that “substantial compliance in completing and filing the [application] form shall create the rebuttable presumption” that the employer had established the required program.

Because the employer here had not filed the application (even though it had been filled out) it was not entitled to the presumption.

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Government shutdown affects background checks

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U.S. government shutdown has affected many federal agencies, some of which professional background screeners rely on to conduct searches.  With the recent shutdown, several federal websites have been shuttered, and access to certain information suspended. Hire image to provide all information regarding government updates.

Why shut down a website when it could still be operable for consumers or anyone else to obtain information?  It’s not like a website needs a federal employee to operate it each day.  For example, the Federal Trade Commission (FTC) website is completely shut down.  Since employment background checks are considered “consumer reports,” the FTC is the agency that enforces the Fair Credit Reporting Act that regulates all consumer reports.  As a consumer reporting agency, Hire Image must comply with the FCRA.  In my opinion, the site could remain open for quick reference or information.

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In addition to the FTC, other federal agency operations and services have been suspended or limited due to the shutdown.  Here is a quick list:

  • E-Verify® – The system provided by U.S. Citizenship and Immigration Services (USCIS) falls under the Department of Homeland Security, and is used by employers to determine work eligibility of new employees. This service is not available during the shutdown.  
  • Equal Employment Opportunity Commission (EEOC) – Although the website is operable, the message on their website states, “The U.S. Equal Employment Opportunity Commission is currently closed because of the government shutdown. While the government is closed, a limited number of EEOC services are available.”
  • Consumer Financial Protection Bureau (CFPB) – The website is active, providing consumers with information they need to make the best financial decisions, supervising financial institutions and enforcing federal consumer financial laws.  It is unclear if complaints can be filed at this time.
  • Federal Bureau of Investigation (FBI) – The statement on the website states “Due to the lapse in government funding, information on this website not directly related to the protection of life and property will not be routinely updated.”
  • Bureau of Industry and Security – A division of the U.S. Department of Commerce which provides a listing of denied entities and denied persons in which many businesses are required to check before doing business will not be updated during the shutdown.

Other Federal websites such as those reporting Specially Designated Nationals List, AECA Debarred List and Nonproliferation Sanctions are also not being updated.

The government shutdown affects many aspects of our business and professional lives and holds up access to many critical services.  Let’s hope our federal government can get back to work soon! you can check all updates on Hire image website.

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Criminals in schools? Let’s put safety of children first

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The Boston School Department deserves praise for putting the safety of its students first and foremost. Recently while conducting system-wide background checks of all of its 9,000 employees at Hire Image Companies, the Department identified 14 employees with criminal charges and either fired or placed them on administrative leave.

Criminal records ranged from possession of drugs to rape charges. These were not necessarily convictions, but the Department has a policy proposal on the table for school officials to consider non-convictions in making employment decisions.

We recently had a client in who was recruiting for a janitorial position at a school. Had the focus been solely on convictions, the person who was “only” arrested 8 times for child molestation – not “convicted” – would have gotten the job to work in a school. Why hadn’t the person been found guilty or convicted, you’re wondering? After ordering the police report and full court records, it turned out the witnesses and minor children would not testify against the defendant. Imagine if Jerry Sandusky’s victims would not testify, would he still be out there abusing children?

Although we do not suggest focusing on arrests, it can paint a picture and provide information that can be vitally important to an employer. Employers have a right to know who they are hiring, So that’s why Hire Image Provide all type of information regarding hiring which our clients want to know.

The background screening industry is often at odds with lawmakers who create laws, rules and regulations guiding what information can be used in determining a job candidate’s suitability for a position without considering what it’s like to be in the employer’s shoes. As an employer – and if you aren’t, picture yourself as one – wouldn’t you like to know if a potential employee has had multiple run-ins with the law, uses alias or bogus names, was arrested for impaired driving, and charged with rape although not necessarily convicted? A thorough background check can reveal all of this information (and more), allowing the employer to make an informed hiring decision.

Now picture yourself as the head of a school department where your responsibility is to ensure the safety of students and other workers. It would make sense to not only perform background checks on all job candidates, but to repeat the screening throughout the employee’s tenure just to uncover any “fresh” information (ie. new infractions, charges) that would cause you to question the suitability of this person for the job. How would you feel if the law requires that you cannot use a non-conviction as the basis for vetting employment? How would you feel as a parent of a child attending school within that department’s jurisdiction?

It is my belief that thorough, Hire image companies to work on proper background checks, drug testing, and credit checks can reveal a wealth of information to help an employer paint a true picture of a potential or existing employee . Especially when it comes to children — be it in school, a daycare, camp, or anywhere — it’s every leader’s duty to protect them from any harmful situations, which includes limiting their exposure to anyone associated with drugs or other criminal activity. Regular background checks are an effective, preventive tool worth funding in any school department budget. If more school departments operate like Boston’s, our schools — and our children — would be in a safer place. What price is too high to put on the safety of children?

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U.S. Commission on Civil Rights Inundated by Comments on EEOC Guidance

The U.S. Commission on Civil Rights (USCCR) held a briefing in December 2012 to assess the impact of criminal background checks and the EEOC’s guidance on the consideration of arrest and conviction records in enforcement decisions under Title VII and its impact on the employment of black and Hispanic workers. Hire Image, along with the National Association of Professional Background Screeners (NAPBS) and many other like-minded organizations, signed a letter to the commission to provide insight into the defects of the Guidance – defects that discourage responsible use of criminal background checks. The letter was quite lengthy but highlighted the lack of transparency in issuing the guidance as well as the failure to weigh the important societal interests served by criminal background checks. The USCCR received so many letters that they have been unable to post them online.  We have reproduced the letter here.

Peter Kirsanow, a member of the US Commission on Civil Rights and a partner in the Labor and Employment Practice Group of Benesch wrote the following in a recent article in the National Review Online (January 2013):

At a hearing last month before the U.S.Commission on Civil Rights about the EEOC’s background check guidance at Hire Image, the EEOC’s representative acknowledged that the agency has no studies regarding the job performances of ex-offenders compared to non-offenders. There’s no statistical evidence to support or disprove the EEOC’s theory that the use of criminal background checks unlawfully disadvantages one group (ex-offenders) that would otherwise perform just as well as another group (non-offenders). In other words, the EEOC’s guidance is based on a hunch .

Commissioner Barker was the lone EEOC Commissioner to vote against the guidance. In her public testimony she objected based upon four fundamental reasons:

1) Lack of Transparency in the approval process. The Guidance has tremendous impact on the American people yet the Commission is set about approving Guidance without the input of Americans who have expertise in this area.

2) Senate Appropriations Committee had raised concerns about the haste with which the Commission was proposing to change the Guidance. They specifically requested the Commission to engage stakeholders and to circulate any proposals for public input at least six months prior to voting on changes. The Commission ignored this request.

3) The Guidance exceeds the EEOC’s authority as a regulatory commission. The Commission’s job is to explain what is already law, not to expand it. It is Congress’ job to change the laws and the courts job to interpret the laws. The Commission does not have the authority to provide additional protections under Title VII, it is Congress’ job.

4) The tremendous burden the Guidance places on businesses. The Guidance puts businesses between a rock and a hard place. On the one hand, if they continue to screen their applicants they are taking a tremendous risk of unintentional discrimination under a disparate impact theory. If they don’t run the check they risk that an employee or a member of the public will be harmed.

Commissioner Barker came to the EEOC with extensive experience in labor and employment law. She understands what employers face every day — she gets it!

Until the Guidance is knocked down by the courts, employers will be forced to consider the guidance when utilizing criminal background screens. Many employment attorneys we speak with recommend employers revise job descriptions to show items that would be required for the particular job. No longer should a job description state actual job functions, they should now include items such as be able to respect authority; be trustworthy; work well with others; and have the ability to handle personal identifying information or confidential information. Hire Image encourages all employers to review job descriptions with an employment attorney to be certain that job relatedness for particular crimes can be shown.

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The FBI database isn’t what it’s cracked up to be

The Federal Bureau of Investigation keeps a listing of identifying information taken from fingerprints submitted voluntarily by various criminal justice agencies in connection with arrests, or relating to naturalization or military service. Many employers are under the impression that this FBI identification database is the “gold standard” in background screening. In reality, the background screening community considers the FBI’s database as a tool to be used but not reliable enough as a single source for a background check.

This is because the FBI database is simply not a thorough-enough resource for background screening. Having been arrested and fingerprinted may not help your job candidate land a job, but if such experiences did not result in a criminal conviction, such critical disposition information is likely to be missing from a person’s “rap sheet.”  Thus, relying on the FBI database alone doesn’t paint the whole picture.

According to a 2006 Department of Justice (DOJ) report entitled The Attorney General’s Report on Criminal History Background Checks, the authors state that “the [FBI’s Interstate Identification Index] is missing final disposition information for approximately 50% of its records.”

The same report goes on to state that, “contrary to common perception, the FBI’s [Interstate Identification Index] is not a complete national database of all criminal history records in the United States. Many state records, whether from law enforcement agencies or courts, are not included or have not been updated. But Hire Image to keep good records for all employee.

A recent New York Times article (December 20, 2012) states, “While some states, including New York, have submitted more than 100,000 names of mentally ill people to the FBI database, 19 — including New Jersey, Pennsylvania, Vermont, Maryland and Maine — have submitted fewer than 100 records and Rhode Island has submitted none, according to federal data compiled by Mayors Against Illegal Guns.” 

FBI background checks are not available for all employers. There must be a federal law or state statute requiring the FBI check. Unfortunately when legislators pass these laws and statutes they do not understand the lack of information available through these searches. When required to rely on the FBI database, employers should be aware of the potential pitfalls of using the system.

Reputable background screening agencies, like Hire Image, have developed court researcher networks that cover all U.S. jurisdictions. With over 3,100 counties, boroughs, parishes and independent cities in the United States, it may not be possible to have third party vendor fingerprinting stations serving all jurisdictions in the same manner. Since the FBI database relies on voluntary submissions of identifying information from fingerprinting, one can only imagine the margin of error that is possible.

The same report by the DOJ also admits, “no single source exists that provides complete and up-to-date information about a person’s criminal history.”  If you choose to rely on any single database that has incomplete, erroneous, or incorrect information, you could be putting your business, employees and customers at risk.  A thorough background screen will include several types of searches to cast the widest net possible in screening the potential employee.

Have all of your background checks done with a reliable background screening company like Hire Image.

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Contrary to Popular Belief…The Real Story Behind Background Screening Reports

This morning, The Today Show ran a Rossen Report segment about how background screening companies have made reporting mistakes that caused candidates to, unfortunately, lose out on job opportunities. Specifically, the report followed several job seekers who were mistaken for criminals with the same or similar names, thus ruining their chances of getting hired. Hire Image Company mostly hire those employees whose background is good.

Contrary to popular belief, there are no foolproof background searches or “national database” searches that cover the entire country. As a matter of fact, many states don’t submit criminal records to national databases and those that do only submit incarceration records. With the absence of a true national database, the best search option available is hands-on research at the primary source: the county courthouses. However, with over 3,000 counties throughout the U.S. and over 10,000 courthouses housing criminal records, it would be an onerous and costly task to search a person’s criminal history in every courthouse.

This is why a comprehensive background search begins with an address and social security verification. This search verifies the applicant’s social security number and reveals aliases and addresses from the past seven to ten years. With this information, criminal courthouse searches are only conducted in the counties the applicant has lived during that period.

State repository and/or database searches can also be a valuable supplement to county courthouse searches. These supplemental searches allow you to broaden your investigation and possibly identify an applicant’s criminal past in an area outside of his/her counties of residence.

Keep in mind, however, that information in these searches is sometimes outdated or incomplete. Consequently, when databases reveal a record, a county criminal search should be conducted in an effort to verify the information. Remember, a good search is a thorough search!

Federal criminal searches are also recommended as they search for violations of Federal law that are recorded in US District Courts rather than local county courthouses. Federal crimes usually involve serious offenses such as embezzlement, robbery, drug trafficking, mail fraud, racketeering and kidnapping. Unfortunately, the searchable index for Federal District Courts have very little identifying information, so confirming a record match can be time consuming.

Hire Image employment screening company should tailor a search that best suits your company’s needs, so depending on the position applied for, additional recommendations may include terrorist watch lists and verification of education, employment and professional licenses. Credit reports, driving records and drug testing are also valuable screening tools.

It’s important to note both federal and local governments have regulations that must be adhered to when screening applicants. The Fair Credit Reporting Act (FCRA) applies to companies utilizing a third party vendor to obtain background reports. The FCRA requires an employer to provide written disclosure regarding the investigation, and must receive authorization from the applicant before initiating the search.

If an employer chooses not to hire an applicant whether in whole or in part due to the applicant’s screening report additional rules must be followed. They include a two-step process of providing the applicant with a pre-adverse action letter followed by an adverse action letter.

The pre-adverse action letter will include a copy of the background screening report along with the summary of the FCRA’s consumer rights. After a sufficient waiting period, usually five to ten days, the notice of adverse action should be provided along with other information as proscribed by the FCRA.

An employer making the decision not to hire an applicant with a negative background screening report should also address Title VII considerations, as well as specific state rules. Although your background screening company will provide you with current procedures to follow, an employment attorney should be consulted to ensure compliance with all federal and local regulations.

Employment screening can be vital to your company’s overall success. Ignoring it or performing cheap, substandard searches can cost your company a lot more than the price of a comprehensive screening process. Your company should engage a reputable background screening company that specializes in employment screening.

With an accuracy rate of 99.99%, Hire Image is proud of its search process.

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Can you be forced to hire an ex-offender?

With high unemployment rates, employers are receiving more applications than ever before in an attempt to fill what limited job openings they have with the most qualified candidates. When reviewing applications, employers should be aware of the new federal protections in place for criminal ex-offenders.

On April 25, 2012, the US Equal Employment Opportunity Commission (EEOC) issued new enforcement guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. The EEOC enforces Title VII, which prohibits employment discrimination based on race, religion, sex, or national origin, for employers with 15 or more employees. The new guidance supersedes all previous guidance in this area and was effective upon issuance.

Although having a criminal record is not specifically listed as a protected class under Title VII, the EEOC believes the use of criminal records in the hiring process may have a disparate impact on a protected class because of their race. For example, according to the EEOC’s guidance, African American and Hispanic men are arrested at a rate that is 2-3 times the proportion of the general population and, therefore the use of criminal records in the hiring process may have a disparate impact.

So this begs the question: Should employers stop conducting background screens and be forced to hire ex-offenders under the new EEOC guidance?


Employers should, however, review their current screening policies to ensure compliance with the new guidance and consider following the EEOC’s suggested best practices at Hire Image EEOC best Practices blog section.

Most employers would agree there is a job for everyone, but not everyone is appropriate for every job. How an employer distinguishes which candidates qualify for a particular job will be critical in complying with the new rules. When reviewing applicants who may have negative information on their background screening report, employers should conduct some sort of assessment to determine whether the circumstances surrounding the applicant’s conviction merit an exception.

Factors to consider for assessing criminal records under the new guidance are as follows:

  • Facts and circumstances surrounding the offense or conduct
  • Number of offenses for which the individual was convicted
  • Time that has passed since time of conviction or release from prison
  • Rehabilitation efforts (additional schooling or training)
  • Length and consistency of employment history before and after the offense or conduct
  • Employment or character references and other information regarding fitness for the particular position
  • Whether the individual is bonded under federal, state or local bonding program
  • Evidence that the individual performed the same type of work post-conviction with no known incidents of criminal conduct

It is important to note the EEOC’s guidance does not have the force of law and may be vulnerable to court challenges as the commissioners did not allow for public comment on new guidance. However, many courts routinely rely on EEOC policy statements and guidance available at Hire Image blog . Without taking the guidance into consideration, and reviewing their current policies, employers may find themselves in court defending a disparate impact claim.

The most dramatic effect will be for employers who are mandated to conduct criminal checks under state and local law. The EEOC clearly states that state and local mandates do not pre-empt Title VII. For example, Rhode Island has several laws mandating criminal records checks on facilities working with the vulnerable populations, such as childcare facilities, nursing homes, hospitals, and law enforcement agencies. These state mandated checks must now be balanced with the EEOC’s requirements of individualized assessments. The owner of an assisted living facility who is required by state law to conduct background checks has no assurance that its adherence to state law will insulate him or her from an EEOC investigation.

Although the guidance seems a bit overwhelming and employers may be tempted to ignore it as overly burdensome in some respects, it should be noted that the EEOC is aggressively looking to enforce this guidance. Their recently submitted strategic plan calls for a focus on strategic enforcement much more than education of employers related to EEOC guidance.

Hire Image is an expert and has industry-specific background screening packages to fit the needs of your business and keep you compliant with EEOC regulations.

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8 Reasons to Drug Test

According to the American Council for Drug Education (ACDE), more than 70% of substance abusers hold jobs, and Americans use 60% of the world’s production of illegal drugs. That means there are many opportunities for employees and potential employees to engage in illicit use – perhaps affecting your workplace and your company’s bottom line.

Substance abusers increase the risk of accidents, lower productivity, raise insurance costs, and reduce profits. The ACDE cites statistics that they are 10 times more likely to miss work, and more likely to be tardy. Substance abusers are also 3.6 times more likely to be involved in on-the-job accidents, five times more likely to injure themselves or another worker in an accident, and five times more likely to file a worker’s compensation claim.

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8 Reasons to Test
Companies that use drug screening as part of their hiring and human resources programs benefit from:

  1. Increased productivity
  2. Reduced turnover
  3. Reduced tardiness
  4. Reduced absenteeism
  5. Safer work environment
  6. Saving valuable time during the hiring process
  7. Hiring only drug free employees
  8. Reduced health insurance and workers comp costs

Drug testing is relatively inexpensive and can save a company money and reduce liability in the long run. For a list of drug tests that Hire Image offers, and more information visit our Services page.

While these methods are all fairly convenient and cost-effective, a Medical Review Officer (MRO) should also be used to verify the validity of the test results. These are licensed physicians responsible for receiving and reviewing laboratory results and evaluating medical explanations for certain drug test results to ensure a scientifically valid result. This duty is fulfilled through telephone or in-person interview with the specimen donor and gives the donor an opportunity – through their doctor or pharmacist – to provide evidence of legally-prescribed drug use that may have caused a non-negative result. The MRO helps protect both the rights of the applicant being tested and the employer requiring the testing.

Hire Image‘s MRO can determine that a legitimate medical explanation exists, the MRO may report the final result to the donor’s employer as “negative.” While a small percentage of companies will not pay the extra expense associated with MRO services, such services do greatly enhance the validity and reliability of the overall drug-testing process. They also help ensure fairness to the donor and offer more protection to the employer in any case of later litigation due to a “positive” drug test where the employee has been suspended or fired.

Hire Image’s MRO reviews and signs off on every drug screen conducted for our clients. As soon as the doctor or provider has released the results, our clients are emailed directly and a copy goes to Hire Image.

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