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Education for Justice |
FACT SHEET E-6 |
Fall
2011 |
YOUR
JOB: BACKGROUND CHECKS, MEDICAL AND
DRUG
TESTS AND MORE
Your employer can ask you for all kinds of information about
yourself. They can ask for references,
credit records and criminal records. They
can ask questions to see if you can do the job and can even ask you to take
tests. BUT employers should not ask questions that discriminate. In an interview or on a job application they
should not ask you about your age, marital status, sex, sexual orientation,
race, color, creed, religion, national origin, if you get public assistance, or
have a disability. See our fact sheet E-7 Discrimination and Harassment at Work.
References
Employers can require you to give a list of references –
people who you have worked for or who know you well.
Credit Records
Employers can get your credit records from a credit
reporting agency. They have to tell you
first that they are going to and get your permission in writing. They have to tell you if anything in the
credit report is used against you in the hiring decision. They have to give you a copy of the report
and a summary of your rights. You have
the right to argue with the report. See
our fact sheet, C-6 Credit Reports.
Criminal Records
Employers can check criminal records. They do not need your permission to get
county records. You do have to
give permission if they want to look at FBI or state BCA records. If you say no, they can turn you down for the
job. Employers have to do a criminal
record check for some jobs like health care workers, public school employees
and apartment managers. They should only
use conviction records if there is a business reason for it. The employer cannot make you pay for a record
check. Tell the truth about your criminal history. It is much worse to lie about a conviction
than to tell about it up front and explain what you have done since then to
turn your life around. If you are not
truthful about your criminal history, and are fired, you may not be able to get
unemployment benefits.
Public Employers: This means city, state, and county
governments and agencies. Minnesota Law
says that a conviction should not keep you from getting public jobs or keep you
from getting a state license unless the crime directly relates to the
work. Even then, you should not be
turned down for the job if you can show that you can do the job and are
“rehabilitated.” Rehabilitated
means that you have changed and are not likely to commit the crime again.
The State of
TESTING
Before Being Hired
Employers can use personality or psychological tests to
screen job applicants. They cannot use
lie detector tests or genetic tests.
They cannot ask you to take a drug or medical test until they offer you the job.
An employer cannot ask about disabilities you have or workers comp
claims you have made. They are allowed
to say that you have the job if you
pass the tests. This is called a
“conditional job offer.”
After an employer makes a job offer, they can check some
things out more before they give you the job.
See below. An employer can ask
questions about drug use, but not about past addiction until they offer you a
job.
If an employer wants you take a
drug or alcohol test they have to give you notice in writing. Everyone who is told they can have the job if
they pass test, must be given the same test.
The employer
can take back the job offer if you refuse to take the test or if you don’t pass
it. If they take back the offer, they
have to tell you why and give you written notice about your right to explain or
argue the results. You can ask for a
re-test, but your employer can make you pay.
If you want a re-test you have to tell the employer in writing within 5
working days of the day your employer told you that you failed.
All other new employees in the same
job category as yours must be asked to take the same exam you are. The employer must pay for the medical
exam. If the exam shows you cannot do
the main duties of the job, they can take back the job offer. They have to tell you the decision and the
reason for it within 10 days.
The employer
can take back the job offer if you will not be able to do the main parts of the
job because of a physical or mental medical condition. If you can do the job with a “reasonable
accommodation” then you should be able to keep the job. (See below.)
An employer can take back the offer if your condition is a threat to
health and safety at work.
If you have a
disability, the employer must make “reasonable accommodations” if it is needed
to help you do the job and will not place “undue hardship” on the
employer. This means that the employer
must make reasonable changes in the workplace or work policies. For example, if you need extra time for
restroom breaks or need to make a change in work schedule for doctor
visits. If you can do the main duties of
a job with reasonable accommodation, a job offer cannot be taken back because
you have a disability.
After You Have the
Job
Employers can
make you take drug tests. They must have
a written drug and alcohol test policy.
Generally, employees are not tested more than once a year. At most jobs, the employer has to give you 2
weeks written notice that you will be tested.
The rules for jobs like driving buses or cabs or running heavy machines
are different and can be stricter. This
is also true in some other jobs like health care. Drug and alcohol tests can be
done without warning (randomly) to employees in safety sensitive jobs.
No matter what kind of job you have,
the employer can make you take a drug or alcohol test, without prior notice,
if:
·
They have reason to think that you are under the
influence of drugs or alcohol at work.
·
You break the employer’s written rules against
the sale or use of drugs or alcohol during work.
·
You are hurt or you hurt another employee on the
job.
·
You cause a work-related accident or are
operating machinery that is involved in an accident.
You have the right to a copy of the
test results. You also have the right to
have the sample re-tested. If the
re-test is bad, then they can discipline you.
They can’t normally fire you for the first bad test, unless they offer
you treatment and you either refuse or don’t finish it successfully. You might have to pay for the treatment
unless it is offered under an employee benefit plan. But the employer CAN suspend you without pay
while waiting for the results of the re-test if they think there is a safety
reason to do so. If you pass the re-test,
your employer has to take you back and pay you for the time you were suspended.
·
Medical
Exams
The employer can only make you
have a medical exam if there is a job-related reason for it. You have to consent to it and they have to
pay for the exam.
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