What does this mean for employer drug testing? It means trouble could be on the horizon, because if it’s impacting society, it’s impacting the workplace.

Fentanyl testing is just one of many trends covered in the annual employer survey, Drugs At Work, performed by Current Consulting Group. Here, we share the survey findings, including what’s happening today in employer drug testing and how businesses are shifting their drug testing programs amid a complicated landscape of changing marijuana laws.

First, let’s establish a baseline. The lion’s share drug testing reported in this year’s survey, 76 percent, came from smaller employers with 500 or less employees. In a distant second spot, the next highest volume, 7 percent, came from the other end of the spectrum—employers with 10,000-plus workers. Since most U.S. companies are small businesses, the 2022 Drugs at Work survey offers a highly representative sample of what’s happening in the American workplace.

The reasons employers are performing drug tests today are in synch with past attitudes, with the top motivators being to 1) promote a healthy and safe workplace; 2) comply with state/federal laws and regulations; and 3) minimize legal risks. Of note in the “other” category, employers also say they’re using drug testing to help boost productivity and improve their company’s image.

In terms of testing methods, lab-based urine testing remains “king of the hill” at 87 percent, with instant urine (42 percent) and hair testing (26 percent) placing second and third. These numbers mirror years past, with minimal changes.

Pre-hire drug testing is up. Last year’s survey uncovered a profound fact. There’s a correlation between pre-hire drug testing and post-accident testing positive rates. Specifically, when pre-hire drug testing dipped in 2020 due to pandemic-related issues, post-accident positivity rates soared. In fact, the post-accident positivity rates for companies that did not perform pre-hire testing were DOUBLE the rate of those that did. Yikes.

Fast forward to 2022 and nearly 37 percent of employers report that their pre-hire drug testing rates are higher than last year. While the hike is likely due to rebounds in hiring in early 2022, some businesses may be responding to the link between pre-hire drug testing and post-accident positivity rates.

In any case, pre-hire drug testing can help reduce the likelihood of placing workers engaged in substance abuse in high-risk positions, where they may go on to have higher accidents rates and compromise the health and safety of the workplace.

Two trends to keep an eye on. Within the “testing methods” category, there was a notable uptick in one area: instant oral fluid testing. Last year, it was mentioned as a trend to watch and, as predicted, it increased more than 2 percentage points from 12 percent to 14.4 percent. There are big reasons for this.

Instant oral fluid testing is fast, with results typically available in minutes. It’s also extremely versatile and candidate friendly, eliminating “ick” factors like shy bladder issues and uncomfortable collection observations associated with urine testing. Last, it’s a federally endorsed drug testing option that’s highly effective and legally defensible. Taken together, the speed, ease of use and peace of mind associated with instant oral fluid testing can help employers streamline hiring, making it easier for them to compete for and quickly hire candidates, especially during peak hiring cycles like the holidays.

The next trend pertains to fentanyl. As a powerful synthetic opioid that’s up to 100 times more potent than morphine, fentanyl played a leading role in the more than 107,000 U.S. drug overdose deaths reported between December 2020 to December 2021, according to the American Medical Association.

While it can be legitimately prescribed for pain, today’s drug dealers are mixing illegal fentanyl with other street drugs like cocaine and heroin as a cheap additive to increase addiction. Because of this, many people are unknowingly exposed to the drug and, as a result, accidently overdose or become hooked.

Given the tightening grip this deadly drug has on America, a new question regarding fentanyl was added to this year’s survey to help increase awareness. It simply asked: “Regarding Fentanyl, did you know that it is typically not included in a drug test panel that includes opioids?”

Surprisingly, just under half of respondents, 47 percent, admitted they were NOT aware that fentanyl is not normally included in a drug testing panel with opioids. Employers who are concerned about this drug and its potential impact on their employees and workplace should immediately ask their drug testing provider about the specifics of their drug testing policy and consider amending it to include fentanyl testing.

The cannabis conundrum continues. The evolving legalization of marijuana for medical and recreational at the local, state and federal level continues to confound employers.

When asked their position on testing for marijuana use in the workplace, most (75 percent) said they plan to continue testing for it; however, it was the remaining one out of four employers that caught our attention. Nearly 10 percent have either stopped testing for marijuana or are considering dropping it from their testing panel and another 15 percent aren’t sure what to do.

Clearly, the issue is crippling many employers with indecision, particularly those with a nationwide presence across multiple jurisdictions with different laws. Just weeks ago, as a result of the November 2022 elections, two more states—Maryland and Missouri—joined the growing list of jurisdictions that have legalized recreational marijuana, bringing the total to 21 states, the District of Columbia and two other U.S. territories. The point being, it’s a highly fluid compliance environment and employers are rightly confused on how best to proceed.

Further complicating matters, a handful of states—including the recent addition of Missouri—have passed laws impacting an employer’s ability make hiring or firing decisions based on a positive marijuana test result, even though marijuana testing for employment purposes remains legal in most states.

The bottom line is this. Marijuana is a Schedule I substance under the Controlled Substances Act. It has a high potential for abuse and can impair employees for several hours after use. Employers with a vested interest in promoting workplace safety are strongly encouraged to continue testing for marijuana and consult with their in-house legal counsel on evolving screening restrictions and guidelines.

When asked, as part of the survey, why employers would consider removing marijuana from their drug testing program, two responses lead the pack. Roughly half, 55 percent, said they can’t find new employees due to marijuana-positive drug tests. An equal number, 55 percent, cited a privacy issue, saying that what employees do in their own time is not the employer’s business.

This is interesting for many reasons. The whole point of drug testing—and background checks in general—is to identify “known risk.” It’s not about eliminating candidates due to prior offenses or behaviors; instead, it’s about better understanding candidates and the potential for risk in the workplace. This includes the risk to other employees, customers and, of course, the risk to the company’s brand reputation and bottom line. Think: negligent hiring, internal fraud, etc.

For example, survey respondents said their top concerns about legalized marijuana are safety (61 percent) and productivity (59 percent). Yet, knowing in advance about an employee’s risk potential can help employers protect the broader business by placing workers in the right position based on a more holistic understanding of their strengths and weaknesses. Likewise, employers can proactively offer substance abuse support to help nurture employee health and well-being, improve worker potential and productivity, and the list goes on.

Looking ahead, as the country quickly shifts from a tight employment market to an atmosphere of increased layoffs heading into the holidays, it’s never been more important to work with a qualified, knowledgeable drug screening provider to help optimize the screening and hiring process, and deliver the best-possible candidate experience. Having a modern, flexible drug testing program informed by the latest trends and trusted expertise can help employers reduce risk, better understand employees and best position their workforce and their business for future success.

To learn more and see other drug testing trends—including the latest alcohol testing statistics and other critical program benchmarks—view the webinar presentation slideshow.

For questions about your drug testing program or any of the trends discussed in this article, please contact First Advantage to get started.

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Before Tuesday, 19 states, the District of Columbia and two other U.S. territories had legalized recreational marijuana in some form. Now, Maryland and Missouri can join that list – as amendments to approve recreational use, as well as bring some changes in criminal law, were passed on November 9, 2022. Employers in Missouri will need to pay special attention to the employer-related impacts.  There were also a number of failed cannabis legalization measures, namely in Arkansas, North Dakota and South Dakota where voters rejected their state’s legalization proposals.

Maryland Recreational Cannabis:

Maryland Question 4 passed on November 9, 2022, permitting recreational cannabis in the state and charging the legislature with providing for the use, distribution, possession, regulation, and taxation of cannabis. Beginning in July 2023, Maryland residents will be able to possess up to 1.5 ounces of cannabis.

There is currently no guidance with respect to employers, anti-discrimination laws, or screening prohibitions. However, it is widely anticipated that employer guidance will be provided prior to the July 2023 enactment.

Missouri Recreational Cannabis:

Missouri Amendment 3 (“Amendment”) passed November 9, 2022, permitting recreational cannabis in the state and prohibiting the discrimination on the basis of medical cannabis use.

This Amendment becomes effective on December 8, 2022 and legalizes the purchase, possession, consumption, use, delivery, and manufacture/sale of cannabis for those 21 and older. However, municipalities can still bar recreational cannabis through public vote and employers are not required to permit or accommodate conduct that is permitted at the workplace or on work property. Employers can still discipline employees for working while under the influence of cannabis. Employers can refuse to hire, discharge, discipline, or take other adverse employment action against individuals in terms of hiring, tenure, terms, conditions, or privileges of employment because said individual was working while under the influence of cannabis.

Of important note, this Amendment also includes a new anti-discrimination provision that applies to medical cannabis users. The Amendment states that employers may not discriminate in terms of hiring, termination, or any condition of employment if the discrimination is based upon 1) an individual’s status as a medical cannabis patient or primary caregiver. This includes the patient’s legal use of medical cannabis off of the employer’s premises during nonworking hours unless the patient was under the influence of medical cannabis on work premises or during work hours; or, 2) a positive drug test for cannabis or cannabis metabolites if the individual is a valid qualifying medical cannabis patient unless the individual used, possessed, or was under the influence of medical cannabis on work premises or during work hours.

Arkansas Recreational Cannabis:

Arkansas Issue 4, which would have legalized adult-use cannabis statewide, failed on November 9, 2022.

North Dakota Recreational Cannabis:

North Dakota Statutory Measure 2, which would have legalized up to one ounce of cannabis for adults 21 years and older, failed on November 9, 2022.

South Dakota Recreational Cannabis:

South Dakota Initiated Measure 27, which would have legalized the possession, distribution, and

use of marijuana by those adults 21 years and older was defeated on November 9, 2022. If you’ve followed the previous blog postings on this issue you’ll note that South Dakota had previously passed this initiative but it was later found unconstitutional by the State’s Supreme Court and send back as a ballot initiative, which has now failed.

Recommendations:

Due to the short compliance timeline, Missouri employers should review their drug testing policies to comply with the new Medical Marijuana amendment and well as await employer guidance from Maryland.

The foregoing commentary is not offered as legal advice but is instead offered for informational purposes. First Advantage is not a law firm and does not offer legal advice.  The foregoing commentary is therefore not intended as a substitute for the legal advice of an attorney knowledgeable of the user’s individual circumstances or to provide legal advice. First Advantage makes no assurances regarding the accuracy, completeness, currency or utility of the following information. Regulatory developments and impacts are continuing to evolve in this area.

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While nothing has changed in this instance, we are always monitoring all IRS guidance on WOTC and other federal and state tax incentive programs, and we work very hard to ensure our clients are well-informed on any and all IRS releases. Please ensure you are subscribed to our Tax Alerts to stay informed! If you have any questions, please contact your First Advantage Tax Consultant or your legal counsel.

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Our ACA team works very hard to ensure our clients are well-informed and fully up-to-date on all federal and state level ACA regulations and guidance. Please ensure you are subscribed to our Tax Alerts to stay informed! If you have any questions, please contact your First Advantage account manager or your legal counsel.

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From customer service to warehouse positions to delivery drivers – 2022 seasonal hiring is in full swing with employers dashing to fill open positions in time for the holiday rush. The pressure is on: An NRF survey of 2,000 consumers conducted in late September found that 62% of holiday shoppers agree that it is important to spend on holiday gifts and celebrations.  

Approximately thirty-one million people or about 20 percent of U.S. employees — work in the retail and hospitality sectors. Retail employment has increased by more than 800,000 in the last two years and is up more than 2.5 million since the peak of the pandemic. One of the number one reasons for working in these sectors is flexibility, especially in selecting the days and times when they work. It’s no surprise that retail is particularly attractive to individuals balancing work and school or family care. Plus, rising inflation has led some individuals to take on second jobs; yet, given multiple talent pools, retailers still regularly face the challenge of replacing more than half of their store staff every year.  

There are also immovable calendar-driven, peak-shopping events that impact business outcomes. For example, many retailers report that most of their revenues are generated during the holiday season. Capturing and converting holiday foot traffic into sales is crucial and can make or break both Q4 and annual results for many retailers.

So, while speed is of the essence when recruiting and hiring frontline employees who can make a difference in customer satisfaction, no organization can afford to take shortcuts and compromise screening job candidates.  

With significant tension to grow already lean post-pandemic teams to address short-term requirements and drive long-term positive outcomes, seasonal hiring necessitates partnering with a solutions provider that can combine speed and effectiveness. 

First Advantage offers applicant background checks and screening solutions for every type of business. From small, mid-market to enterprise and large global organizations – and for every industry: retail, hospitality, healthcare, financial services, higher education, non-profits, and many more – First Advantage enables companies to Hire Smarter and Onboard Faster. 

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Edward Mason
Investigative Researcher

Introduction

In today’s academic job market, competition has become fiercer than ever. As of a 2014 study, professors in U.S. engineering programs have graduated an average of 7.8 new Ph.Ds. per every potential academic job opening, with less than 17% of recent Ph.Ds. in science, engineering, and health-related fields able to secure jobs in academia. Since the publication of this study, the problems have not lessened. The academic job market for humanities graduates has cratered in the past two decades;[1] for instance, eight psychology Ph.D. graduates were created per assistant professor job openings as of 2017.[2] Recent data now shows that the private sector employs nearly as many Ph.Ds. as educational institutions.[3] Across the board of academic disciplines, substantially more Ph.Ds. are granted to professor-hopefuls than there are (or ever will be) tenure-track job openings.[4]

As the supply of qualified Ph.D. candidates rapidly continues to outpace job openings in academia, increasingly desperate candidates take every opportunity to enhance their academic credentials by publishing more articles, attending more conferences, and winning more awards. After all, academia only accepts the best and the brightest to its hallowed ranks. But what if these outstanding curricula vitae (CVs) are actually filled with fluff, exaggerations, and outright lies?

Hiring committees generally think of fellow academics as trustworthy by virtue of their shared educational and professional credentials. However, a recent study has shown that academic applicants provide unverifiable or erroneous credentials on CVs at similar levels to non-academic job applicants. Nearly half of the applicants examined in the study had at least one unverified or inaccurate research citation on the CV, similar to the 55 percent error rate for résumés from other professions. The study concluded, “We do not know why applicants have unverified and inaccurate research citations on their CVs… and we have good reason to believe that some (perhaps many) are deliberate misrepresentations of their research accomplishments.”[5] Such a conclusion is a sobering reminder that academic institutions should screen candidates just as vigorously as they would in any other field. Following best practices in hiring is paramount in academia.

Faced with an abundance of qualified candidates, hiring committees often do not have the time to devote to due diligence. However, the above data clearly shows that concern for due diligence is warranted. Investigative research through a trusted background screening vendor offers academic employers the tools to help mitigate potential costly and embarrassing scandals, as well as the legal and financial risks associated with hiring an unqualified or dishonest candidate. By adhering to the following best practices for due diligence in academic hiring — tenure track professors, post-doctoral scholars, researchers, scientists, and upper-level administration — academic employers can maintain academic integrity and avoid institutional liability.

Improper screening of academic candidates can lead to costly problems for institutions.

Adequate due diligence and screening practices based on thorough investigative research can mitigate potential scandals for academic institutions. In recent years, numerous instances of institutions’ failure of due diligence have revealed the need to vet CVs with greater scrutiny and serve as cautionary tales to institutions involved in the hiring process.

In one case, West Virginia University (WVU) discovered that a professor had deliberately misled the hiring committee after he was nominated for an endowed position at WVU’s School of Public Health. Anoop Shankar, who stood to be in control of tens of millions of dollars in public funds, claimed to hold a Ph.D. in epidemiology and medical statistics from Mahatma Gandhi University, a prestigious medical residency at the All India Institute of Medical Sciences, and to have published several research articles. None of this was , and a basic background check would likely not have revealed the extent of Mr. Shankar’s impropriety. A deeper level of screening was needed to protect the university’s reputation and its stakeholders.

Mr. Shankar would go on to mislead immigration authorities, misappropriate university funds and even attempt to frame a colleague for sexual assault in retribution for the colleague’s investigation of Mr. Shankar. Mr. Shankar even received a new position at Virginia Commonwealth University (VCU) using the same fake credentials for which he was then under investigation by WVU.[6] His employment at VCU only ended when NBC published a story on the fraud allegations at WVU. WVU’s president admitted that the university did not properly vet Mr. Shankar during the hiring process, stating: “The only common currency that we have as a university is our integrity and our transparency and, in this instance, we did not do well.”[7]

Academic integrity is not the only consideration in the due diligence of academic hires. Institutions stand to lose substantial money due to misspent wages, lengthy litigation, and reputational harm.

Henry Zimon, president of Albright College, abruptly resigned in 2004 after accusations that he misled the school about his publishing record. Mr. Zimon claimed to Albright’s search committee that he was in the process of publishing two books, although neither publisher claimed to have any knowledge of the books. Additionally, Mr. Zimon falsely claimed to have taught seminars at Harvard University.[8] Albright’s faculty passed a resolution demanding an explanation for the dubious publications, but Albright’s Board of Trustees stood behind Mr. Zimon. Ultimately, Albright was forced to retain legal counsel after trying to fire Dr. Achal Mehra, an associate professor of communications, following Dr. Mehra’s fervent efforts to expose Mr. Zimon.[9] Albright’s failure of due diligence placed the university in a challenging and legally perilous position and put the faculty dangerously at odds with the university administration.

Academic fraud persists among some of the top institutions in the U.S. Marilee Jones, dean of admissions at Massachusetts Institute of Technology, resigned after MIT could not confirm the receipt of any of her degrees. A highly paid executive of the University of Utah misled the school about receiving a master’s degree from New York University and about several employment stints and awards. A former Polk State College professor was sentenced to five years in prison for faking doctoral credentials.

These examples are not isolated events, representing a pattern of both deliberate fraud and of missed opportunities to conduct simple due diligence. Furthermore, in light of the recent research discussed above, these incidents only represent a fraction of the potential scandals which have not become known. Failure to follow best practices in academic hires has created public embarrassment and consternation for universities and colleges.[10]

Best practices for academic screening.

In light of such scandals, academic institutions may consider best practices for all academic hires. Institutions may want to consider meticulously investigating top candidates’ CVs to verify the reported academic credentials. While not all errors on a candidate’s CV may be presented with the intent to mislead, conscientious candidates will take care to adjust their CVs once questions have been raised and will be glad to clarify any discrepancies, while deliberate efforts might wither under heightened scrutiny. Hiring committees must be aware of erroneous or exaggerated CV claims before they may become a liability for the employer down the road.

Best practices for academic screening include:

• Verifying a candidate’s reported education. The degree-granting institution (or its third-party verification service) should be contacted to confirm that the individual received the reported degree(s) on the reported dates. While candidates misleading hiring committees and schools on degrees they hold is not as common as publication records, such problems have occurred. Many background screening companies offer verification of a candidate’s educational credentials by directly confirming awarded degrees.
• Verification of a candidate’s teaching and/or research experience, as well as professional service history. While traditional employment verification may not be necessary for academic hires, an individual’s expertise within their discipline is of the utmost importance for assessing the candidate’s ability. A background screening company with a focus in higher education will offer verification of a candidate’s teaching and research experience through direct contact with the reported institution, media searches, and internet searches. Additionally, some companies can even conduct interviews with a candidate’s former colleagues — beyond those listed on the CV, those providing letters of recommendation, and those listed in application materials — to provide additional information about a candidate’s experience.
• Confirmation of the candidate’s publication history. Most instances of erroneous information on job candidates’ CVs are found in their publication history. While unverifiable publications do not always arise from intentional misrepresentations, the hiring committee should be made aware of any inaccuracies. A candidate’s publication history from the CV would be assessed to discern that each publication is verifiable (i.e., located in a reputable library source and/or publisher website). While an unverifiable publication would not necessarily indicate that a candidate had explicitly lied to the committee, its discovery could give the committee opportunity in advance to seek an explanation or even reveal a problematic pattern. A background check vendor that specializes in investigative research will verify a candidate’s publication history, as presented to the hiring committee, is factually represented by checking the reported publications using extensive library searches and journal databases, as well as internet searches.
• Examine publication history for questionable publications. As the competition for academics to publish in respected and leading journals intensifies, many scholars have allegedly been turning to so-called “predatory journals” that do not rigorously peer-review submissions and charge — sometimes substantial sums of money — for publication. According to The New York Times, one Thompson Rivers University professor reported faculty members who had received promotions and won awards via publications in dubious journals. Elsewhere, Queensborough Community College professors have raised concerns about the number of faculty publishing works in so-called predatory journals.[11] As these journals do not hold themselves to the same standards of scholarship as respected academic publishers, hiring committees should be made aware of the public perceptions of certain publications.
• Verification of awards, honors, and/or fellowships. Academic awards and honors are critical in today’s extremely competitive job market, as such distinctions can help set candidates apart. The organization or school granting the award, honor, or fellowship should be contacted directly to verify that the candidate received what was reported. An investigative research-driven screening company should offer verification of a candidate’s reported awards, honors, and/or fellowships through direct contact with the granting institution and meticulous internet searches.
• Confirming professional memberships and affiliations. Many academics claim membership in numerous professional organizations to demonstrate their involvement in their academic discipline. The organizations should be contacted directly to verify the candidate’s membership. While not all organizations provide direct verification of an individual’s membership, a pattern of unverifiable memberships would allow a hiring committee to seek further explanation from the candidate or would contextualize other patterns of unverified credentials.
• Comprehensive litigation searches corresponding to the candidate’s known address history. Searches for criminal, divorce and civil suits in jurisdictions where the candidate has lived or worked can reveal legal actions a candidate might rather remain hidden. Confirmed legal actions would be summarized in an easy-to-read, legalese-free format to provide a hiring committee with a concise understanding of any potential matters.
• Other due diligence searches for adverse media, National Sex Offender Registry, credit history, social media screening, sex offenders registry, and motor vehicle records.

Academic Screening at First Advantage

For years, academia has coasted on its reputation as a collective of fair-minded individuals who value honor, integrity, scientific rigor, and discipline while remaining oblivious to the various fraudsters who have lied and schemed their way into competitive and prestigious positions in the field. However, as we have seen, academia is not immune to the due diligence failures and explosive media scandals that plague other professions. Academic scandals can be extremely costly, both monetarily and in terms of public perception, and therefore, academic hiring requires the same due diligence expected of any other profession.

Academic faculty are the public faces and guardians of an institution’s reputation, and institutions must take every precaution to ensure that new hires are not only hired for their prestige and claimed experience but also for their integrity. First Advantage offers due diligence, following these best practices, to screen academic candidates.

[1] https://www.insidehighered.com/advice/2021/02/09/new-reality-humanities-phds-transformation-not-crisis-moment-opinion

[2] https://ncses.nsf.gov/pubs/nsf19301/data

[3] https://ncsesdata.nsf.gov/doctoratework/2017/

[4] https://www.insidehighered.com/advice/2021/06/22/how-phd-job-crisis-built-system-and-what-can-be-done-about-it-opinion

[5] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7203623/

[6] https://www.nbcnews.com/news/us-news/ivory-tower-phony-sex-lies-fraud-alleged-w-va-university-n199491

[7] https://wvmetronews.com/2014/10/07/wvu-admits-mistakes-in-academic-fraud-case/

[8] https://www.chronicle.com/article/albright-college-president-who-was-accused-of-lying-about-his-credentials-resigns/

[9] https://www.upi.com/Archives/2001/07/14/Truth-irrelevant-to-professors-defense/7025995083200/

[10] For more examples, see:

https://www.insidehighered.com/news/2007/04/27/mit-dean-claimed-unearned-degrees

https://www.theledger.com/story/news/crime/2017/03/16/former-polk-state-professor-david-broxterman-gets-5-years-for-faking-credentials/21949883007/

https://www.todayonline.com/singapore/nus-reviewing-visiting-professor-credentials-academic-fraud-1952721

https://www1.folha.uol.com.br/internacional/en/scienceandhealth/2019/05/i-got-carried-away-says-brazilian-researcher-who-lied-about-harvard-credentials.shtml

https://www.fox13now.com/news/fox-13-investigates/fox-13-investigates-high-paid-university-of-utah-executive-lied-on-resume-published-fake-articles

[11] https://www.nytimes.com/2017/10/30/science/predatory-journals-academics.html

 

This content is offered for informational purposes only. First Advantage is not a law firm, and this content does not, and is not intended to, constitute legal advice.  Information in this may not constitute the most up-to-date legal or other information.

Readers of this content should contact their attorney or lawyer to obtain advice with respect to any particular legal matter.  No reader, or user of this content should act or refrain from acting on the basis of information in this content without first seeking legal advice from counsel or lawyers in the relevant jurisdiction.  Only your individual attorney or legal advisor can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation.  Use of, and access to, this content does not create an attorney-client relationship between the reader, or user of this presentation and First Advantage.

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The New Jersey CREAMM Act requires that drug tests include “scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva” and a “physical evaluation,” which must be conducted by a “Workplace Impairment Recognition Expert.” The law requires the New Jersey Cannabis Regulatory Commission (NJCRC) to issue regulations establishing certification standards for WIREs, but none have been issued to date.

On September 9, 2022, the New Jersey Cannabis Regulatory Commission (NJ-CRC) issued long-awaited interim guidance to employers regarding the use of a Workplace Impairment Recognition Expert (WIRE) to “detect[] and identify[] an employee’s usage of, or impairment from, a cannabis item or other intoxicating substance.” In addition, the NJ-CRC also released a template “Reasonable Suspicion Observed Behavior Report” form that employers may, but are not required to, use in connection with workplace drug testing. This new guidance can be found here: https://www.nj.gov/cannabis/documents/businesses/Business%20Resources/Workplace%20Impairment%20Guidance%20922.pdf?utm_source=pocket_mylist.

Under the guidance, if an employee or vendor trained on impairment plus the suspected employee’s manager/supervisor document behaviors or physical signs of impairment, then that documentation will give rise to a reasonable suspicion to drug test the employee. If the employee then fails the test, the employer may proceed to disciplinary action, including termination. The key take-away from the guidance is that:

“A scientifically reliable objective testing method that indicates the presence of cannabinoid metabolites in the employee’s bodily fluid alone is insufficient to support an adverse employment action. However, such a test combined with evidence-based documentation of physical signs or other evidence of impairment during an employee’s prescribed work hours may be sufficient to support an adverse employment action.”

The NJ-CRC also provides a template to record the documentation of behavior and/or physical signs of impairment, which is referred to as a Reasonable Suspicion Observation Report (RSOR). It is noteworthy that the RSOR is not specific or limited to impairment from cannabis. That template can be found here: https://www.nj.gov/cannabis/documents/businesses/Business%20Resources/Workplace%20Impairment%20Guidance%20Sample%20Form.pdf.

There are two additional important take-aways from the Guidance:

• The guidance also clarifies that employers may also require a drug test as part of a random drug test program or after a work accident which the employer is investigating.
• New Jersey employers are not required to violate federal contracts in order to comply with this guidance.

Accordingly, New Jersey employers should review this Guidance with their legal counsel and consider taking the following steps:

• Prepare a (or use the sample) Reasonable Suspicion Observation Report and accompanying Standard Operating Procedure consistent with the Guidance.
• Identify and train employees who can determine suspected cannabis use during work hours or use a third-party contractor.
• Update employee policies to ensure consistency with the Guidance, and train managers and human resources employees on the Guidance.

The foregoing commentary is not offered as legal advice but is instead offered for informational purposes. First Advantage is not a law firm and does not offer legal advice.  The foregoing commentary is therefore not intended as a substitute for the legal advice of an attorney knowledgeable of the user’s individual circumstances or to provide legal advice. First Advantage makes no assurances regarding the accuracy, completeness, currency or utility of the following information. Regulatory developments and impacts are continuing to evolve in this area.

The post New Jersey Cannabis Testing Impacts: Cannabis Regulatory Commission Rolls Out Long-Awaited Guidance On Drug Testing, Discipline, & Cannabis In The Workplace appeared first on First Advantage North America.

The proposed regulatory changes would apply to DOT-regulated employers and their contractors (‘‘service agents’’) who administer their DOT-regulated drug and alcohol testing programs. Currently, employers and their service agents must use, sign, and store paper documents exclusively, unless the employer is utilizing a laboratory’s electronic Federal Drug Testing Custody and Control Form (electronic CCF) system.

Under the proposed rules, the following forms and records are being considering for electronic signature, storage, and data:

• Drug and alcohol background checks (40.25—prior drug/alcohol violations)
• MRO reports of verified drug test results
• Substance Abuse Professional (SAP) reports
• DOT Alcohol Testing  Form (ATF)

In doing this, DOT aims to reduce the paperwork burden associated with drug and alcohol testing without compromising the integrity and confidentiality requirements of the program and notes:

Just as use of the electronic CCF has improved the efficiency and accuracy of documenting the urine specimen collection process, we expect that allowing the use of electronic signatures, records, and record retention throughout the entirety of part 40 will be a significant improvement. We expect advances in workflow efficiency, cost savings, and a reduction in longstanding problems associated with drug and alcohol testing program documentation and recordkeeping, as noted above.

Read the full AMPRM here: https://www.govinfo.gov/content/pkg/FR-2022-08-05/pdf/FR-2022-08-05.pdf

The foregoing commentary is not offered as legal advice but is instead offered for informational purposes.  First Advantage is not a law firm and does not offer legal advice.  The foregoing commentary is therefore not intended as a substitute for the legal advice of an attorney knowledgeable of the user’s individual circumstances or to provide legal advice.  First Advantage makes no assurances regarding the accuracy, completeness, currency or utility of the following information. Regulatory developments and impacts are continuing to evolve in this area.

*Please note that this advanced rulemaking appears to have been published in response to a federal law which required the DOT to amend 49 CFR Part 40 to authorize, to the extent practicable, the use of electronic signatures or digital signatures executed to electronic forms instead of traditional handwritten signatures executed on paper forms no later than  February 28, 2025, over two years from now. Therefore, please be aware that the use of electronic signatures for DOT Part 40 documents continues to not be permitted at this time. Additional rulemaking must be published over time before electronic signatures are permitted for DOT Part 40 documents.

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Raymond Van der Wal
Chief Product Officer

Perhaps one of the biggest challenges that most employers — large and small — are encountering is the ability to attract and retain top talent. No doubt you’ve heard this before. It’s a challenge that cannot be understated. Top applicants are on the market for just a few days before finding their perfect opportunity. Do your background check and onboarding processes support fast onboarding?

Talent Acquisition Managers and Recruiters are quickly learning and adjusting their strategies to align with market shifts prompted by the pandemic and the current state of unprecedented competition for qualified applicants.

The sum of all  interactions an applicant has with an employer’s brand while onboarding is not unlike what a customer’s interactions would be during the course of, well, becoming a customer.  Most of us are familiar with the term “customer experience” as more companies claim their “customer-centricity.” After all, customer advocacy can be closely linked to future business potential. Word of mouth speaks volumes. Why not use this same principle when it comes to creating meaningful applicant experiences?

First Advantage sought to better understand the challenges within the talent recruitment and hiring experiences. We listened to what our customers and leading employers had to say, commissioned research, and reached throughout our professional communities to understand these onboarding challenges. A definitive outcome is the importance of creating a delightful applicant journey that resulted in positive word of mouth, deeper relationships, and yes – even employee loyalty and retention.

Another outcome is the observation that applicants have journeys just like customers have journeys. We call it the “Applicant Experience” – or AX, and it’s not just another buzz phrase or passing trend. It emphasizes the critical importance of  employers building relationships with applicants and reducing onboarding friction to help  reduce applicant drop-off and attract top talent. There is an applicant lifecycle, from the moment a job description is crafted to the moment an employee starts, consideration should be given to how applicants respond to everything you say and do. As part of their journeys, applicants form an impression of your brand as soon as they see the job posting, perhaps earlier. Building a successful AX starts at the job description – well before these individuals apply. Attracting people is the most fundamental aspect of a successful talent acquisition strategy, and those employers who do it well look for opportunities to reduce friction in their onboarding processes. Designing an optimal AX requires understanding what potential employees want. And our research tells us top talent, among other attributes, look for these characteristics from prospective employers:

 

1. Employers Who Do What They Say. Applicants look for those that display congruency in what they say, how they say it, and how well they put it into practice. They want to see some alignment in their corporate objectives relative to things like a DE&I strategy and the importance placed on their people and communities.
2. Employers Who Offer Learning and Growth. Our research tells us applicants expect their employers to offer growth opportunities, but what may be more surprising is the high importance placed on this characteristic among the younger workforce population. The data indicates more and more applicants seek out businesses offering opportunities for professional development. Employers should focus on coaching managers to enhance their relationships with their teams since a significant driver of employee engagement – and retention – can be attributed to manager behavior.

Studies have shown that applicants choose to work for companies that most closely match their own identities, values, and beliefs. A company that provides a consistent AX can differentiate itself from the competition, fostering the understanding that the applicant’s values are shared, even appreciated. With attention to these traits, it’s entirely possible to win over the best job seekers before competitors even know what happened.

Five Hiring Best Practices

1. Perfect Your Timing

Timing is everything when it comes to screening and onboarding, and all job seekers prefer an efficient process. Even if it means sending a rejection letter quickly, applicants are left with an impression of a company that has a clear vision and respect for an applicant’s time, potentially making the experience with the employer’s brand more memorable.

The key here is to provide flexibility. You want to keep applicants moving through the process at a steady pace – one that doesn’t make your preferred applicant feel rushed yet isn’t so slow that the applicant loses interest or is quickly acquired by another employer. A poorly timed background screening cycle negatively affects business productivity, not to mention the quality of hire.

2. Advance Your Tech Stack

The use of recruiting and background check technology is nothing new. However, paying attention to your tech stack has become essential to improving the AX. Technology is increasingly important in framing a positive experience that reflects the qualities you want to signal — qualities that distinguish your company as a highly desirable place to work with a clear path toward the future.

Contrary to what some may believe, talent onboarding processes can complement and even improve your ability to be personable with applicants. By leveraging AI chatbots, to carry out repetitive tasks for example, you can concentrate on the human element of applicant interactions. While a chatbot answers basic questions, a live recruiter can be more present during interviews. Technology can do what it’s designed to do. It can help keep everything flowing seamlessly without overburdening recruiters.

Leverage technology that supplements – or enhances your recruiting and background screening strategies while eliminating redundancies. Ultimately, your tech stack should enable you to create more personable and interactive people experiences.

3. Eliminate Friction

The complicated truth is businesses have never done as much hiring as they’re doing today. They’ve never spent as much money doing it. Yet, according to Harvard Business Review, they’ve never done a worse job of it.

In many cases today, applicant assessment processes put the job seeker through an unreasonably long and complex experience. While applicants feel the burden of finding the right fit, then applying, waiting, maybe interviewing and ultimately waiting again – these steps create multiple points of friction that give way for top job seekers to lose interest. It’s not unusual for applicants to become frustrated when they don’t know your process, and where they stand as an applicant.

Applicants will not wait long either. Applicant ‘ghosting’ (i.e., applicants not showing up for their interview) is 52% according to our recent study. If applicants feel as though they’re being strung along, or if there are multiple employment prospects for the applicant to consider – and let’s face it, today’s job seekers have the luxury of choice – you are likely to experience applicant ghosting.

To reduce your potential for ghosting, eliminating the friction points and other complexities can be as simple as removing just one or two steps from the overall process. Doing so, you may find it wasn’t a necessary step after all. You may also find a slightly more enhanced AX, yet you haven’t lost anything in return.

4. Infuse Your DE&I Focus

There is widespread agreement that diverse and inclusive companies have the advantage of standing out when it comes to finding and nurturing the best talent, increasing talent engagement, and improving customer satisfaction.In our research report, Talent Acquisition Professionals Reveal Hiring Challenges & Strategies, having a DE&I program is of utmost importance among all populations, and in particular Gen Z. However, it’s more than simply having a DE&I strategy, and still more than just publishing that strategy on your Careers page. There is more to it, and some employers have yet a long way to go. According to the research, some employers could be missing an opportunity to better connect with more diverse applicants, as less than a third (29%) have made their Careers sites available in non-English languages.

Posting messages and publishing social media events about your diversity, equity, and inclusion programs can create a desirable work environment and elevate the AX. In simple terms, infusing your DE&I principles throughout the organization, including the recruiting, screening, and onboarding processes is not only the right thing to do, it’s also the future of hiring and one of the best ways to elevate your brand whether or not you’re actively hiring.

 

5. Overcommunicate With Applicants

In a recent report from Robert Half, an astounding 62% of professionals lose interest when they don’t hear back from an employer within two weeks of the initial interview. A sure way to create meaningful experiences is to develop relationships with your applicants. It’s important to have a consistent communication strategy when acquiring and onboarding talent. The communication strategy should include technology, such as artificial intelligence (AI) and similar automation tools that help keep applicants aware of their screening status. Chatbots can also work to keep applicants moving through their “applicant journeys”, helping you mitigate the potential for drop-offs at points in your current screening processes where there may be known friction. Chatbots are welcomed by many applicants and help highlight the importance you place on the overall AX.

Most applicants still welcome a phone call too. When calling, willingly share the information you have and take the time to actively listen and answer questions. Focus on learning something new about the job seeker. Err on the side of overcommunicating, and the applicant will appreciate your time and the details you share. Doing so also builds trust and puts the applicant at ease enough that they may also share information you might not otherwise know, such as the applicant having another offer on the table. All information is good information, and communication is the key to collecting that information.

Fortunately, many employers recognize that to make significant strides in enhancing applicant experiences, they must understand the journey that job seekers endure to land their desired roles. And the ideal AX cannot be achieved without relationship-building with open, frequent communication and a trusted technology partner to help streamline  applicant background checks.

Ready to enhance your Applicant Experiences (AX)?
Hire smarter and onboard faster today….

This content is offered for informational purposes only. First Advantage is not a law firm, and this content does not, and is not intended to, constitute legal advice.  Information in this content may not constitute the most up-to-date legal or other information. 

Readers of this content should contact their attorney or lawyer to obtain advice with respect to any particular legal matter.  No reader, or user of this content should act or refrain from acting on the basis of information in this content without first seeking legal advice from counsel or lawyers in the relevant jurisdiction.  Only your individual attorney or legal advisor can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation.  Use of, and access to, this content does not create an attorney-client relationship between the reader, or user of this content and First Advantage. 

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