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Friday, January 21, 2011

Employment Background Checks (Including Past Drug Use, Treatment or Counseling Inquires) on Federal Contactor Employees OK Says Supreme Court

On January 19, 2010, the U.S. Supreme Court held that background checks on contract employees working for the federal government, including questions on illegal drug use and drug treatment, do not violate the employees' constitutional privacy rights. The Court went on to hold in it’s Opinion that information sought by the government is “part of a standard employment background check of the sort used by millions of private employers,” and that such “inquiries aid the government in employing a competent, reliable workforce.”

The Facts: The National Aeronautics and Space Administration (NASA) has a workforce of both federal civil servants and Government contract employees. Contract employees at NASA’s Jet Propulsion Laboratory (JPL), which is operated by the California Institute of Technology (Cal Tech), were not subject to Government background checks at the time they were hired, but that changed when the President ordered the adoption of uniform identification standards for both federal civil servants and contractor employees. The Department of Commerce mandated that contract employees with long-term access to federal facilities complete a standard background check, typically the National Agency Check with Inquiries (NACI), by October 2007.

NASA then modified its contract with Cal Tech to reflect the new requirement, and JPL announced that employees who did not complete the NACI process in time would be denied access to JPL and face termination by Cal Tech. The NACI process, long used for prospective civil servants, begins with the employee filling out a standard form (here, Standard Form85, the Questionnaire for Non-Sensitive Positions (SF–85)). SF–85 asks whether an employee has “used, possessed, supplied, or manufactured illegal drugs” in the last year. If so, the employee must provide details, including information about “treatment or counseling received.” The employee must also sign a release authorizing the Government to obtain personal information from schools, employers, and others during its investigation. Once SF–85 is completed, the Government sends the employee’s references a questionnaire (Form 42) that asks open-ended questions about whether they have “any reason to question” the employee’s “honesty or trustworthiness,” or SF–85 and Form 42 responses are subject to the protections of the Privacy Act. With the deadline for completing the NACI process drawing near, the employees brought suit, claiming that the background-check process violates a constitutional right to informational privacy.

Lower Court Holdings: The District Court declined to issue a preliminary injunction, but the Ninth Circuit reversed. It held that SF–85’s inquiries into recent drug involvement furthered the Government’s interest in combating illegal-drug use, but that the drug “treatment or counseling” question furthered no legitimate interest and was thus likely to be held unconstitutional. It also held that Form 42’s open-ended questions were not narrowly tailored to meet the Government’s interests in verifying contractors’ identities and ensuring JPL’s security, and thus also likely violated respondents’ informational-privacy rights

U.S Supreme Court Holding: “Assuming, without deciding, that the Government’s challenged inquiries implicate a privacy interest of constitutional significance, that interest, whatever its scope, does not prevent the Government from asking reasonable questions of the sort included on SF–85 and Form 42 in an employment background investigation that is subject to the Privacy Act’s safeguards against public disclosure. pp. 10–24. The forms are reasonable in light of the Government interests at stake. pp. 11–19.

(1) Judicial review of the forms must take into account the context in which the Government’s challenged inquiries arise. When the Government acts in its capacity “as proprietor” and manager of its “internal operation,” Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886, 896, it has a much freer hand than when it regulates as to citizens generally. The questions respondents challenge are part of a standard background check of the sort used by millions of private employers. The Government has been conducting employment investigations since the Republic’s earliest days, and the President has had statutory authority to assess an applicant’s fitness for the civil service since 1871. Standard background investigations similar to those at issue became mandatory for federal civil-service candidates in 1953, and the investigations challenged here arose from a decision to extend that requirement to federal contract employees. This history shows that the Government has an interest in conducting basic background checks in order to ensure the security of its facilities and to employ a competent, reliable workforce to carry out the people’s business. The interest is not diminished by the fact that respondents are contract employees. There are no meaningful distinctions in the duties of NASA’s civil-service and contractor employees, especially at JPL, where contract employees do work that is critical to NASA’s mission and that is funded with a multibillion dollar taxpayer investment. pp. 12–15.

(2) The challenged questions on SF–85 and Form 42 are reasonable, employment-related inquiries that further the Government’s interests in managing its internal operations. SF–85’s “treatment or counseling” question is a follow-up question to a reasonable inquiry about illegal-drug use. In context, the drug-treatment inquiry is also a reasonable, employment-related inquiry. The Government, recognizing that illegal-drug use is both a criminal and medical issue, seeks to separate out those drug users who are taking steps to address and overcome their problems. Thus, it uses responses to the drug-treatment question as a mitigating factor in its contractor credentialing decisions. The Court rejects the argument that the Government has a constitutional burden to demonstrate that its employment background questions are “necessary” or the least restrictive means of furthering its interests. So exacting a standard runs directly contrary to Whalen. See 429 U. S., at 596–597. Pp. 16– 18.

(3) Like SF–85’s drug-treatment question, Form 42’s open ended questions are reasonably aimed at identifying capable employees who will faithfully conduct the Government’s business. Asking an applicant’s designated references broad questions about job suitability is an appropriate tool for separating strong candidates from weak ones. The reasonableness of such questions is illustrated by their pervasiveness in the public and private sectors. Pp. 18–19. (b) In addition to being reasonable in light of the Government in substantial protections against disclosure to the public. Whalen and Nixon recognized that a “statutory or regulatory duty to avoid unwarranted disclosures” generally allays privacy concerns created by government “accumulation” of “personal information” for “public purposes.” Whalen, supra, at 605. Respondents attack only the Government’s collection of information, and here, as in Whalen and Nixon, the information collected is shielded by statute from unwarranted disclosure. The Privacy Act—which allows the Government to maintain only those records “relevant and necessary to accomplish” a purpose authorized by law, 5 U. S. C. §552a(e)(1); requires written consent before the Government may disclose an individual’s records, §552a(b);and imposes criminal liability for willful violations of its nondisclosure obligations, §552a(i)(1)—“evidence[s] a proper concern” for individual privacy. Whalen, supra, at 605; Nixon, supra, at 458–459. Respondents’ claim that the statutory exceptions to the Privacy Act’s disclosure bar, see §§552a(b)(1)–(12), leave its protections too porous to supply a meaningful check against unwarranted disclosures. But that argument rests on an incorrect reading of Whalen, Nixon, and the Privacy Act. pp. 19–23.
530 F. 3d 865, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. THOMAS, J., filed an opinion concurring in the judgment. KAGAN, J., took no part in the consideration or decision of the case.

Common Sense Counsel: the case represents a green light to industrial plant premises owners to require extensive background checks on contractor employees who wish to enter their property. That is especially true where the nature of the work involves safety sensitive functions, as where security concerns are present. Drug testing gate checks have long been conducted to determine whether a contractor’s worker is impaired. This decision will in all likelihood greatly expand such inquiries. Because there is no employer/employee relationship between the premises owner and the contractor’s employee none of the typical Title VII or ADA protections apply.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-501-1540.

Alabama Jury Awards Employee Taunted with KKK Hood

By Tommy Eden, Attorney

A Birmingham, Alabama federal court jury this week in the case of Albert L. Thomas v. Chemical Lime Company awarded $314,000 to a African-American Birmingham area man who filed suit in a Title VII retaliatory discharge claim. Albert Thomas is a 50-year-old African-American male who worked for Chemical Lime in Calera for over 25 years when he was fired in December 2008. He had begun as a laborer and advanced to the position of control room operator making $20.33 an hour.

In the summer of 2008, Thomas discovered several large white rags cut out in the form of a Ku Klux Klan hood. He pointed this out to his supervisor who reacted by holding up one of the hoods and making inappropriate comments and gestures. Shortly after the incident, Thomas was falsely accused of violating company policy and demoted to the position of laborer with a pay reduction to $14.90 an hour. A younger white employee took over his position. Thomas was also refused the opportunity to work overtime and in September 2008 filed an EEOC charge against Chemical Lime. After Chemical Lime received a copy of his EEOC charge, Thomas testified that his production supervisor told him they were going to "fire his black ---" and "you won't be working too much longer, you will be with your brothers on the street." In December 2008 Thomas was terminated by Chemical Lime. He testified that it was in retaliation for opposing discrimination and engaging in the protected activity of filing of an EEOC charge. The EEOC investigator found that there was credible evidence to support reasonable cause to believe that the Title VII retaliatory violations had occurred.

It was not the supervisor’s action initially involving the KKK hood, it was the Chemical Lime's failure to properly handle the investigation and then took impermissible retaliatory steps against Thomas that resulted in this jury’s substantial verdict. EEOC Retaliatory charges in 2010 were at historically record levels.

Common Sense Counsel: prevention is the key to avoiding this type of embarrassing adverse outcome. When an employee makes an allegation of harassment or violation of EEO policy, or files an EEOC charge, it is vitally important that Alabama employers involve a seasoned HR professional or management labor attorney to advise them before taking any adverse action against the employee. Conducting a through investigation of the facts and circumstances - including allowing the employee to tell their side of the events - before making an adverse employment decision is a great risk reduction step. Consistently follow systematic steps to ensure that each of your discharge decisions are legal and defensible.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-501-1540.

Friday, January 14, 2011

Man Charged with Felony for Defrauding Urine Drug Test

Man placed an unknown substance in the specimen cup that was retrieved from a condom that was hidden in his sock. In the State of Ill his action has resulted in his being charged with unlawful defrauding of a drug and alcohol screening, a Class 4 felony. Get the rest of the story. Alabama currently has not such law but should.

Wednesday, January 12, 2011

New I-9 Handbook for Employers Released

By: Tommy Eden, Attorney

United States Citizenship and Immigration Services (USCIS) released The Handbook for Employers (Revised 01/05/2011), also known as the M-274

The Handbook for Employers helps employers better understand the Form I-9 process. It was published in cooperation with our Department of Homeland Security.

By law, U.S. employers must verify the identity and employment authorization for every worker they hire after Nov. 6, 1986, regardless of the employee's immigration status. To comply with the law, employers must complete Form I-9, Employment Eligibility Verification. The Handbook for Employers is a guide for employers in the Form I-9 process. It has been revised and updated with new information about applicable regulations, including new regulations about electronic storage and retention of Forms I-9; it clarifies how to process an employee with a complicated immigration status; and, it addresses public comments and frequently asked questions. The Handbook was last revised 7/31/2009.

Some of the many improvements, new sections, and tools included in the Handbook for Employers are:

  • New visual aids for completing Form I-9;
  • Examples of new relevant USCIS documents;
  • Expanded guidance on lawful permanent residents, refugees and asylees, individuals in Temporary Protected Status (TPS), and exchange visitors and foreign students;
  • Expanded guidance on the processing of employees in or porting to H1-B status and H2-A status; and
  • Expanded guidance on extensions of stay for employees with temporary employment authorization.

    The Handbook for Employers now also includes information for employers in the Commonwealth of the Northern Mariana Islands who must verify their employees' employment authorization on Form I-9 CNMI. It also highlights information about documents CNMI employers may accept from their employees.

Common Sense Counsel: I-9 Best Employment Practices:

1. Use the DHS employment eligibility verification program E-Verify to verify the employment eligibility of all new hires;

2. Establish an internal training program on the hiring process, with annual updates (i.e., on how to manage completion of Form I-9 [Employment Eligibility Verification Form]), and on how to detect the fraudulent use of documents in the I-9 process;

3. Permit the I-9 and E-Verify process to be conducted only by individuals who have received this training, and include a secondary review as part of each employee’s verification, to minimize the potential for a single individual to subvert the process;

4. Arrange for annual I-9 audits by an external auditing firm or a trained employee not otherwise involved in the I-9 process;

5. Ensure and document the definitive resolution of no-match letters received from the Social Security Administration (SSA), per SSA and Department of Homeland Security guidance;

6. Establish a tip line mechanism (inbox, e-mail, etc.) for employees to report activity relating to the employment of unauthorized aliens, and a protocol for responding to employee tips;

7. Establish and maintain appropriate policies, practices and safeguards against use of the verification process for unlawful discrimination, and to ensure that U.S. citizens and authorized workers do not face discrimination with respect to hiring, firing or recruitment or referral for a fee because of citizenship status or national origin.

Tommy Eden is an attorney with Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law, and presented throughout the State of Alabama on Immigration Workplace Compliance and also to the Governor’s Commission in 2008. He can be contacted at or 334-241-8030.

Tuesday, January 11, 2011

EEOC Reports Job Bias Charges Hit Record High in 2010

By Tommy Eden, Attorney

Retaliation Surpasses Race as Most Frequent Allegation; Agency Obtains $404 Million for Victims

The U.S. Equal Employment Opportunity Commission (EEOC) announced on January 11, 2011 that private sector workplace discrimination charge filings with the federal agency nationwide hit an unprecedented level of 99,922 during fiscal year (FY) 2010, which ended Sept. 30, 2010.

The federal agency ended FY 2010 with 86,338 pending charges - an increase of only 570 charges, or less than one percent. Between fiscal years 2008 and 2009, the EEOC's pending inventory increased 15.9 percent.

EEOC Chair Jacqueline A. Berrien announced the report stating: "Discrimination continues to be a substantial problem for too many job seekers and workers, and we must continue to build our capacity to enforce the laws that ensure that workplaces are free of unlawful bias."

The FY 2010 data show that the EEOC filed 250 lawsuits, resolved 285 lawsuits, and resolved 104,999 private sector charges. Through its combined enforcement, mediation and litigation programs, the EEOC secured more than $404 million in monetary benefits from employers -- the highest level of monetary relief ever obtained by the Commission through the administrative process.

The FY 2010 enforcement and litigation statistics, which include trend data, are available online at

According to the FY 2010 data, all major categories of charge filings in the private sector (which include charges filed against state and local governments) increased. These include charges alleging discrimination under Title VII of the Civil Rights Act of 1964, as amended; the Equal Pay Act; the Age Discrimination in Employment Act; the Americans with Disabilities Act; and the Genetic Information Nondiscrimination Act (GINA). Last year, for the first time ever, retaliation under all statutes (36,258) surpassed race (35,890) as the most frequently filed charge, while allegations based on religion (3,790), disability (25,165) and age (23,264) increased. In its first year of enforcement, the EEOC received 201 charges under GINA. Historically, race had been the most frequently filed charge since 1965.

The FY 2010 data also show:

• The mediation program ended the year with a record 9,370 resolutions, 10 percent more than FY 2009 levels, and more than $142 million in monetary benefits;

• The EEOC also expanded its reach to underserved communities by providing educational training, and public outreach events to approximately 250,000 persons;

• The agency continued its concerted effort to build a strong national systemic enforcement program. At the end of the fiscal year, 465 systemic investigations, involving more than 2,000 charges, were being undertaken;

• The EEOC resolved a total of 7,213 requests for hearings in the federal sector, securing more than $63 million in relief for parties who requested hearings. The agency also resolved more than 4,600 federal sector appeals -- 400 more than in FY 2009.

Common Sense Counsel: Every employer in Alabama's to do list to avoid EEOC retaliation charges should include: 1) adopting an effective and legally defensible policy against unlawful retaliation; 2) ensuring that your employees have received a copy of the policy and signed an acknowledgment; 3) training supervisors in unlawful retaliation; 4) removing discharge authority from front-line supervisors; 5) conducting a through investigation of the facts and circumstances - including allowing the employee to tell their side of the events - before making the final discharge decision; 6) conducting exit interviews where you specifically question the employee as to whether they have any unresolved claims against the company and having them acknowledge on the exit interview form their answer; and 7) following systematic steps to ensure that each of your discharge decisions are legal and defensible.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-501-1540.

Florida Governor Signs Executive Order Mandating State Contractors use E-Verify

By: Tommy Eden, Attorney

Immediately after being sworn-in as Florida’s 45th governor, Gov. Rick Scott fulfilled campaign promises by signing an executive order to require state agencies to verify legal immigration status using E-Verify the federal government's Internet-based program for verifying employment eligibility.

Florida Executive Order No. 11-02 requires state agencies to use the E-Verify system to verify employment eligibility of state employees and contractors.
• All state agencies under the direction of the Governor must use E-Verify system to check employment eligibility of their current and prospective employees.
• Requires state agencies under the direction of the Governor to include in all state contracts a requirement that contractors utilize the E-Verify system to verify the employment eligibility of:
o all persons employed during the contract term by the contractor to perform employment duties within Florida; and
o all persons (including subcontractors) assigned by the contractor to perform work pursuant to the contract with the state agency.
Download Copy:

Federal Government Already Mandates for Federal Contractors: In January 2009 the US General Services Administration initiated a “Mass Modification” of all Federal Contracts incorporating the E-Verify requirement. The modification incorporates Federal Acquisition Regulation (FAR) 52.222-54, Employment Eligibility Verification (Jan 2009), into all GSA/FSS contracts, unless certain exceptions apply under FAR 22.1803. Employers who fell under these contracts must now verify the employment authorization of new employees and certain categories of existing employees unless they fall under an exemption or risk fines or debarment. Employment Eligibility Verification, or E-Verify, requires federal contractors to electronically verify the employment eligibility of employees working on federal contracts in the United States.

Practical Counsel:

• Enroll in E-Verify at• Even if you are not a federal contractor (it is an employer’s only get out of jail card with Immigration Compliance and Enforcement (ICE);
• Schedule I-9 Supervisor Training because the E-Verify system is only as good as the information collected on your I-9 forms;
• Put an E-Verify policy in your employee handbook; and
• Make sure you are using the latest version of Form 1-9.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at

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