Background Checking & Drug Testing

Many employers face complex and challenging issues when implementing background checks and drug testing policies. As these pre-employment screenings are becoming a standard item on the hiring checklist, maintaining compliance with the Fair Credit Reporting Act (FCRA) and related state and local laws can be daunting—and employers can increase their risk of litigation by failing to screen applicants and employees and/or failing to follow proper procedures for doing so under the law.

Given the proliferation of state medical marijuana laws, developing and conflicting case law, upward trend in medical marijuana-related lawsuits, and media attention on the subject, compliance in this tricky area has become an issue of growing importance to employers. In light of this unique confluence of laws and practical concerns, employers face difficult decisions regarding employee use of marijuana to accommodate disabilities and drug testing practices.

HOW WE HELP

Our Background Checking & Drug Testing teams consist of attorneys across the country whose sole or primary focus is on cutting edge compliance, litigation, and advice. Our clients benefit from our intimate familiarity with the statutes, interpretive case law and Federal Trade Commission and Consumer Financial Protection Bureau guidance on compliance issues in this space.

We regularly advise both employers and providers on how to comply with the FCRA and other statutes that govern obtaining and using information about applicants and current employees, while recognizing the importance of background checks and drug tests to the efficient operation of a business. We have also counseled thousands of employers on these issues and represent hundreds of background screening providers. Our attorneys consistently defend employers and background screening vendors in class action and single plaintiff cases dealing with compliance under the FCRA and other statutes that govern obtaining consumer information about prospective and current employees. Our team has some of the most premier nationwide subject matter experts in these areas.

A testament to our preeminence in this area, we have testified before the Equal Employment Opportunity Commission (EEOC) about the use of credit checks as a screening tool for job applicants and present to the main employer and screener industry groups. Our attorneys have worked with the US Chamber of Commerce and SHRM to reform and revise provisions of the FCRA that unintentionally restricted workplace investigations. These efforts were rewarded by amendments to the FCRA to change those provisions.

With respect to litigation, Seyfarth has handled many cases and nationwide pattern and practice charges involving the use of criminal and credit checks in employment and the FCRA. We regularly handle both single-plaintiff cases as well as class-wide litigation on behalf of employers and background screening providers.

Complying with ever-evolving employment laws can be a challenge, especially as new and complex issues continue to emerge. It is crucial for employers of all types and sizes to establish effective human resources management strategies in order to avoid costly litigation, lengthy government investigations and other outside intervention with their business operations.

THE SEYFARTH EXPERIENCE

We use our industry knowledge and legal acumen to provide our clients with practical advice and proactive strategies designed to both ensure compliance and manage litigation risk. Our lawyers have broad experience reviewing and drafting all forms of employment policies and procedures, handbooks, applications, performance evaluation forms, offer letters, employment contracts, onboarding documents and forms, and all other documents that have an impact on the employment relationship. We regularly design and present training programs tailored to individual client needs and have developed audits to assist clients in identifying areas of risk, complying with various employment laws, and minimizing their exposure to class action litigation.