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Smith

Two of the most common questions from employers involve drug testing and background checks. They want to know how to go about it, what the laws are, and how to protect their rights as well as their employees'.

Regarding drug testing, the Bureau of Labor and Industries website states, "The Oregon civil rights laws don't specifically address the drug testing of employees. But the absence of specific statutes in this area doesn't mean that employers have carte blanche to conduct the drug tests in every situation. In fact, while it is generally legal for employers to conduct drug tests, you should proceed very carefully, because this type of testing can infringe on an employee's common law (and for public sector employees, constitutional) privacy rights."

BOLI has this to say about criminal background checks: "Under Oregon's 'ban the box' statute, it is an unlawful practice for an employer to exclude an applicant from an initial interview solely because of a past criminal conviction. ... That means an employer may not require an applicant to disclose a criminal conviction on a job application or prior to an initial interview. If the employer doesn't conduct an interview, it may not require an applicant to disclose a criminal conviction prior to making a conditional job offer. Review generic employment application forms — especially those found online or at office supply stores — to make certain they do not include any question on criminal history. With a few narrow exceptions, employers may no longer ask questions about criminal convictions at the early stages of the hiring process."

Employers should seek the assistance of BOLI before implementing policies rather than following a problem or misstep. The bureau's website provides valuable technical information (citing Oregon laws) for employers, including legal hiring practices, new and existing employment laws and upcoming employer training. The site has a frequently asked questions page that provides specific information on drug testing and criminal background checks, among other important topics.

In addition to the Bureau of Labor and Industries, human resource professional associations, which are on online, are additional viable options to help employers avoid common pitfalls.

If an employer decides to require testing or a background check, who conducts it? Employers need to investigate whether a local hospital or clinic provides these services and how much they cost. There also are nationwide drug testing companies, but it is usually cheaper to use local resources. Employers may contact local law enforcement, state police or even the FBI to see what services they provide and to ascertain the level of background check needed for a particular position. Remember, fees are most likely involved.

In addition to the above resources available to help protect employers, meeting with an attorney well versed in employment law would be beneficial.

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