The EEOC is Cracking Down on Employers with Pre-Employment Physical Ability Tests

The EEOC’s Strategic Enforcement Plan (SEP) focuses, in part, on eliminating class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities.

Since issuing the SEP, the agency has filed lawsuits against employers to ensure that there is a level playing field for women and individuals with disabilities, among other classes.  Recent cases demonstrate this with regard to pre-employment Physical Ability Tests (PATs) for job applicants.  The EEOC is pursuing employers where the PAT being used may be disparately impacting women – and, the EEOC is winning.  In the most recent case, $3.2 million was awarded to a class of female applicants, who were disproportionately turned away from a job because of the results of the PAT.

Given this impact, and especially in light of the size of the recent judgment, it is crucial for employers to understand the issues surrounding PATs.  The EEOC is searching for any disparate impact a PAT could have.  If one is found, the employer has the burden of showing (1) the use of the PAT is job-related and (2) the PAT is consistent with business necessity.  In order to show business necessity, the PAT must be predictive of the individual’s ability to perform essential job tasks.  The employer must also show that no alternative practice could achieve his or her objectives with less adverse impact.

The EEOC lists Best Practices for Employment Testing.  Those include:

  • Employers should administer tests and other selection procedures without regard to race, color, national origin, sex, religion, age (40 or older), or disability.
  • Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. The test or selection procedure must be job-related and its results appropriate for the employer’s purpose. While a test vendor’s documentation supporting the validity of a test may be helpful, the employer is still responsible for ensuring that its tests are valid under UGESP.
  • If a selection procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. For example, if the selection procedure is a test, the employer should determine whether another test would predict job performance but not disproportionately exclude the protected group.
  • To ensure that a test or selection procedure remains predictive of success in a job, employers should keep abreast of changes in job requirements and should update the test specifications or selection procedures accordingly.
  • Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes. A test or selection procedure can be an effective management tool, but no test or selection procedure should be implemented without an understanding of its effectiveness and limitations for the organization, its appropriateness for a specific job, and whether it can be appropriately administered and scored.

The following are some recommendations specifically for employers conducting PATs:

  • Ensure the PAT is properly validated (actually testing physical abilities that workers need on the job)
    • Use a professional job analyst/consultant (appropriate employee safety experts)
      • Include measurements of frequency, weight, durations, tools, and distances involved in performing physical tasks
    • Have the analyst document the verifiable physical tasks necessary for the specific job (not a class of jobs)
  • Design/Redesign a PAT to simulate job tasks or test minimum level of fitness required to safely and effectively perform the job.
  • Revalidate PATs to make sure tests are still measuring only necessary job tasks.

While PATs are useful tools to improve worker safety, they can result in disparate treatment leading to claims of discrimination.  Employers should pay close attention to their practices, consider the above recommendations, and be aware of the EEOC’s continued pursuit of employers who are not doing enough to ensure that women and people with disabilities have a fair chance to obtain a position that may involve a pre-employment physical ability test.


Confused on Recent Federal Changes with Cannabidiol (CBD)?

By Nick Hartman 

Drug Screening Compliance Institute

FDA-approved drugs that contain CBD derived from cannabis, now Schedule V

Ever since the news dropped that the Food and Drug Administration approved the first cannabis-derived drug Epidiolex, the GW Pharmaceuticals drug which is designed to treat two rare forms of childhood epilepsy using a marijuana compound called Cannabidiol (CBD), we’ve been hearing several comments and inquiries on how these developments will impact employer workplace screening programs.

CBD is one of the 400+ ingredients found in marijuana and is not psychoactive. To date, nearly 20 states have passed laws allowing for the use of a CBD extract, usually in oil form, with minimal tetrahydrocannabinol (THC), and often for the treatment of epilepsy, seizures.

The federal ‘green light’ came on the heels of several months of promising research results and a positive preliminary vote from the Food and Drug Administration this spring. Experts are hopeful that the approval will unleash a wave of new interest in the potential medical applications of CBD and other marijuana compounds.

“This approval serves as a reminder,” Scott Gottlieb, the Food & Drug Administration (FDA) commissioner, said in a statement, “that advancing sound development programs that properly evaluate active ingredients contained in marijuana can lead to important medical therapies.”

The announcement also mentioned that this approval means that the Drug Enforcement Agency (DEA) now have 90 days to reschedule CBD, which is listed in January of last year as a “marihuana extract” separate from “marihuana” or THC. That means instead of being listed alongside marijuana as a Schedule 1 drug with “no currently accepted medical use,” CBD will soon be categorized as either a Schedule 2 or 3 drug, much like the popular ADHD medication Adderall.

“We don’t have a choice on that,” said DEA public affairs officer Barbara Carreno. “It absolutely has to become Schedule 2, 3, 4, or 5.”

That statement pushed wide-spread speculation & confusion as to what exactly will happen next.

Will CBD now be legal at a federal level?

Will the oils & topicals made with CBD, that is widely available in states that have legalized the medical & personal use of marijuana, now be available in all states?

Will employers need to revise their policies or procedures now that CBD is an approved ‘drug’?

Thankfully, on Friday 9/28, the DEA & Department of Justice issued a Final Order detailing the changes.

In summary, the Final Order . . . “places certain drug products that have been approved by the Food and Drug Administration (FDA) and which contain cannabidiol (CBD) in schedule V of the Controlled Substances Act (CSA). Specifically, this order places FDA-approved drugs that contain CBD derived from cannabis and no more than 0.1 percent tetrahydrocannabinols in schedule V.” [emphasis added]

So, no, the DEA has not rescheduled CBD across the board. Essentially, the only CBD medicine considered to have a medicinal function, according to the FDA, is Epidiolex. The federal government still considers all other cannabis-derived CBD products (which do not have FDA approval) to be a violation of federal law.

You can view the Federal Register Here

Takeaways for Employers

The topic of the medical & personal use of legal marijuana has dominated conversations for employers across the U.S. and shows no sign of slowing down. As we have advised for many years now — employers must take action to review their current workplace policy & related procedures to ensure their program is compliant with mandatory &/or voluntary state laws, state-specific marijuana laws, federal laws (such as the ADA, Human Rights & discrimination) & the impactful court decisions that have been ruled.


Ten Steps to Protect Your Business in 2018

By: Christine Cunneen

With data and security breaches more frequent than ever over recent years, 2018 is the year to focus on security protection, with more effective plans to protect ourselves, our companies, and our customers.

From a small nonprofit to a large corporation–every organization is exposed, in some way, shape, or form, to sensitive personal information that identifies either employees or customers or both.  This “personal identifying information” can include names, Social Security numbers, addresses, credit card information, license information, and account data.  When this data, even something as simple as a name, falls into the wrong hands, trouble will inevitably ensue.  Crime, including identity theft, fraud, and embezzlement, is one repercussion.  Another is the potential damage to your business.  Can it withstand theft of funds or property and/or losing employee and customer trust and loyalty?  No business can afford those risks, especially when they can be minimized with some simple steps.

Here are ten steps to help protect your business:

  1. Create a Data Security Plan. Your plan may include many of the following steps, as well as those more specific to your own business and technology infrastructure.  Assess the vulnerability of any foreseeable attacks, breaches, and issues.  Then, determine the steps necessary to protect yourself in each situation.  Remember these should not be limited to electronic issues and measures only.  Rather, they should encompass basic physical protections, even as simple as locking doors and filing cabinets. 
  2. Take action now. With a plan in place, it is time to take action.  Too many times business owners and managers are overwhelmed with the day-to-day activities of the business that “have to” get done.  They tend to put implementation of policies and procedures on the backburner.  However, every day you wait is another chance for a security breach.  Planning and reacting on paper without having to face the stress of an actual breach makes sense, when emotions are not running wild. From restricting employee access to running anti-spyware programs and securing electronic information in transit over the Internet, don’t leave any stone unturned – even if it’s a basic or obvious protection step.
  3. Conduct background checks. A well-trained and screened workforce is the best defense against identity theft and data breaches. Check references and do background checks before hiring employees and contractors who will have access to sensitive data.  Investigate the background screening company of your choice to ensure that they are accredited by the National Association of Professional Background Screeners.  Such accredited firms will utilize data security practices that meet the highest possible standards.
  4. Shred and pare down your records. Dispose of credit reports, receipts, CDs and any paperwork with sensitive data printed on it, as many data compromises happen the old-fashioned way–through lost or stolen paper documents. This is not to say that electronic security is preferred, but an encrypted, e-security system managed by an independent professional is recommended.
  5. Follow state law.Because there are no federal standards for protecting personal identifying information, you should comply with your state law.  Many states require a risk-based information security program be in place and outline the proper notification steps. NAPBS has published a guide for data breach notification laws in your state.  The laws are always changing, so use this as a guide only and always check the latest laws directly with your state and/or your privacy attorney.
  6. Train your staff. Your information security plan is only as strong as the employees who will implement it. Most breaches actually happen by accident because employees do not have the information they need.  Initial and periodic training will help focus on everyday behaviors to help keep personal information secure and confidential. Be sure to have a procedure in place for what to do when workers leave your employment, such as terminating passwords, collecting keys, and ID cards.
  7. Keep business and personal accounts separate. Businesses are not the only ones getting hacked.  Individuals are subject to identity theft on a daily basis, especially with the increasing amount of “online living.”  Keep all emails, passwords, and accounts separate help to ensure that if you are victim to a breach in one area of your life, the other areas stay protected.
  8. Refer to the Federal Trade Commission (FTC).  The FTC has published a Security Guide for Business and it is a great place to start or revise your plan.  All businesses should cross-reference this guide from time to time to make sure they are staying up-to-date and to measure up their own practices against those recommended by the FTC.
  9. Enforce restrictive data permissions. So much comes down to employee security and knowledge.  Only those employees with a need-to-know should have access to passwords and other secure information.  The more people who have access, the more potential for problems.  Enforce your policies and change passwords and other security information frequently.
  10. Bring in a specialist. Not every business has the means to hire an outside expert, but, if you can, it could be one of the smartest decisions you could make.  Just like you are an expert in your own business, these professionals are experts in theirs.  They can provide an invaluable education to you and your employees about best practices and security tips.  They can also review your current policies and advise any applicable changes. 

Creating a culture of security is vital to the longevity of your business.  Taking steps now to safeguard sensitive information before any breaches occur is not only smart, it demonstrates a deep, value-based sense of professionalism and integrity in your business operations, which goes a long way with employee and customer satisfaction and loyalty.

Can Drug Testing Your Employers Save Money? Compliance with State Rules is the First Step.

By William J. Judge, JD, LL.M.
Drug Screening Compliance Institute

Drug testing can make you money. 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.[1]  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.[2] 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.[3]


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.[4]  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. 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.


Lesson:  State benefits can save substantial amounts of money, but only if you comply with the rules set out by the state legislature and agency that enforces the law.


[1] In most of these states, there are detailed rules that must be met.  An explanation of those details is beyond the scope of this article.

[2] Inmon v. Convergence Employee Leasing III, Inc., et al, No. 1D17-0815, (1st Dist. Ct. of App. (4-18-18)).

[3] Sec. 440.16.

[4] Bowlin v. Servall, LLC, et al, Docket No. 2017-07-0224, (2-08-18).

Hire Image to Present Free Webinar: What Every HR Professional Needs to Know in 2018

On February 22, at 3:00 PM EST, Hire Image’s CEO, Christine Cunneen, will host a Free Webinar: What Every HR Professional Needs to Know in 2018.

Join us for a discussion on what’s new in 2018 and what trends will be affecting the background screening industry this year. This webinar will cover topics including, but not limited to, Salary History Laws, Ban the Box Laws, Marijuana in the Workplace, Non-Traditional Staffing, and Data Security. Register today and join the conversation on what we expect to see as the year progresses.

This webinar is approved for SHRM PDC credit.
This webinar is approved for HRCI credit.


Hire Image to Present Free Client Only Webinar: Behind the Scenes of Background Screening – A Step by Step Review

On January 25th at 3:00 pm EST, Hire Image Director of Compliance, Dorothy Riley, will host a Free Client Only Webinar: Behind the Scenes of Background Screening – A Step by Step Review.

Join Dorothy and CEO, Christine Cunneen, with updates of new compliance obligations and the necessary steps of the background screening process from start to finish. The online system will be reviewed, covering topics from notices (federal, state, and local) to new legislation, such as salary restrictions. In circumstances where the report contains information that could bar an applicant from employment, they will discuss the Pre-adverse/Adverse process and where sample forms can be found. Finally, helpful resources will be shared to aid in the awareness of compliance requirements.

This webinar is approved for SHRM PDC credit. This webinar has been submitted to the HRCI for review.

Click Here to Register