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This is Your Job on Drugs

The Annoyance:

I just applied for a job at a prestigious company, but before they'll even consider me they insist on a urine sample. Can I legally refuse?

The Fix:

You can always refuse, but you probably won't get the job. Since the "Just Say No" campaign of the early 80s, drug testing has become an unfortunate part of life at many companies. It's also been used for more than just keeping addicts off the payrolls. According to a 2001 survey by the American Management Association (AMA), employers also use such tests to deny employment based on an applicant's medical history, HIV status, presence of sexually-transmitted diseases, and whether they're pregnant. Companies have also successfully used drug test results to deny workers' compensation claims. And even if you're perfectly clean (and healthy, and not with child), you could still get nixed due to false test results (see Table 4-3).

Table 4-3. You could be a druggie...or you may just have a head cold.
Legal SubstanceMay show up us...
Cold remedies or diet pillsAmphetamines
DHEAAnabolic Steroids
Poppy seedsOpiates
Sources: Erowid, Community Health Gate


What's the cost of a false positive drug test? How about nearly three years of unemployment? That's the price paid by Charmaine Garrido, a former investigator with the Cook County Sheriff's Department.

In 2001, Garrido tested positive for cocaine at work and was forced to leave her job. In June 2004, the Illinois Court of Appeals ruled that the positive test results were more likely caused by Garrido drinking large amounts of a coca-tinged tea she had purchased while visiting Peru. The mate de coca tea (cost: 120 bags for $45) contains trace amounts of cocaine and is used for treating altitude sickness. The lesson here: if you feel you've been failed by a false drug test result, you may have to sue to get your job back.

If you'd rather collect unemployment checks than undergo a drug test, you still have a few options. To wit:

  • Check local laws. Some municipalities (such as San Francisco) prohibit drug screening for people in non-safety-related professions. For a guide to drug laws by state, visit the Drug Policy Alliance site (http://www.drugpolicy.org/statebystate/) or the National Conference of State Legislatures (NCSL) site (http://www.ncsl.org/programs/employ/drugtest.htm).

  • Find an employer that doesn't test. According to AMA surveys, 67 percent of companies test for drugs, down from a peak of 81 percent in 1996. (The AMA study also notes that the level of pre-employment screening remains high; most of the decline is due to companies conducting fewer tests on current employees.)

  • If you already work for a company that tests, try to convince your employer to substitute "impairment testing" in place of drug screens. Impairment tests measure reaction times and other factors that determine how well individuals actually perform their jobs, instead of simply scrutinizing the contents of their bloodstream. For more on impairment testing, see The National Workrights Institute's page at http://www.workrights.org/issue_drugtest/dt_impairment_testing.html.)

An extensively researched (but unofficial) FAQ about drug tests and the ways people have tried to defeat them can be found at the Erowid site http://www.erowid.org/psychoactives/testing/testing_faq.shtml#3. Be aware, however, that several states make it a crime to falsify the results of a drug test.

The Background on Background Checks

The Annoyance:

I am inches away from getting a big job, but my future employer insists they need to do a background check on me first. I don't like the idea of my prospective employer digging into my past. Can I do anything about it?

The Fix:

Well, you can say no. Under the recently revised Fair Credit Reporting Act, a prospective employer has to obtain your permission before it can run a background check on you. (The bad news is that if you refuse, you're less likely to get the job.) If the company decides not to hire you because of something that turned up in the report, it must give you a copy of the report, as well as the opportunity to dispute anything you feel is inaccurate. But if the employer says it made the decision based on factors other than your background check, then all bets are off.

If you live in California, you can get a copy of the report regardless of whether it was a factor in their decision. Other state laws may provide further rights (see the National Conference of State Legislatures' page on laws concerning job applicants and credit checks at http://www.ncsl.org/programs/employ/jobapplicantcreditchecklaws.htm). The Privacy Rights Clearinghouse (PRC) offers an extensive fact sheet on background checks at http://www.privacyrights.org/fs/fs16-bck.htm.

But the law only applies to information gathered by third parties. So, for example, if a company does its own background checks—and never uses information from a credit reporting agency—it's not subject to the limitations of the FCRA. Any company that wants to be exempt from these restrictions could hire its own gumshoes as employees. According to Frederick S. Lane, author of The Naked Employee, one-third of the nation's 40,000 investigators are employed by corporations.

Here's a tip from the PRC: if you agree to a background check, ask your potential employer what background screening company they use. By law, that firm must give you access to the dossier they compile—which can include information not provided in the report given to the employer.

For many jobs, such as those dealing with child care and virtually all governmental positions, background checks are mandated by state or Federal law. For tips on how to keep a background check from coming back to bite you, see the sidebar "Be Your Own Gumshoe." Table 4-4 lists what a background check can reveal.

Table 4-4. What can a background check reveal? A lot.
What may be part of a background checkWhat's left out a
Driving recordsBankruptcies more than 10 years old
Employment historyCivil suits more than 7 years old
Property ownershipTax liens more than seven years old
Court and Criminal recordsAccounts on collect after 7 years
Medical records bArrests (but not convictions) after 7 years
Credit history & bankruptcies 
Personal and character references 
State licensing records 
Military records b 
Workers compensation history 
a Applies only to background checks using a third-party consumer reporting service, as per the FCRA.
b In most instances, your permission is required before employers can access this information.
Source: Privacy Rights Clearinghouse


If a potential employer plans to sort through your sordid past, it's a good idea to run your own background check first, says Tena Friery, research director for the Privacy Rights Clearinghouse. That way you can ferret out errors and correct them before your future boss sees them. Here's how:

  • Order your credit report. Credit reports contain a lot more information than just how good you are at paying your VISA bill. They can include information about the property you own, your marital status, legal proceedings, and more. According to the Public Research Interest Group (http://www.pirg.org/consumer/credit/), more than 25 percent of reports contain errors that have caused people to be denied credit or employment. For the scoop on how to order yours, see Chapter 2, "Check Your Reports."

  • Check your court records. Some state databases report every time you've been arrested; others only include your name if you've been convicted. If you've had a felony changed to a misdemeanor, or had records expunged, double-check to make sure the court has a record of it. Unfortunately not all court records are online, so you may be forced to visit the courthouse and comb through its files.

  • Drive by the DMV. Many employers will check your driving record, especially if your job involves operating a vehicle. If you've got a DUI/DWI conviction, you might still get the job. But if you lie about that on your application—and your employer uncovers the falsehood—you probably won't. You can usually request your driving records by contacting your state DMV (see http://www.dmv.org) or you can order a copy directly from DrivingRecord.com for $30 a pop.

  • Peruse your old personnel files. Some states (like California) allow you to request your HR files from former employers, provided you make your request within a certain time period. Even if they don't, your old boss might let you see them anyway.

  • Hire a pro. If you're applying for a big money gig, you might want to hire a private investigator to see what misinformation is floating around with your name attached. A cheap alternative is to spend $60 to $100 on an online search using a site like US Search (http://www.ussearch.com) or Intelius (http://www.intelius.com). It won't be as thorough, but gross errors will leap out.

  • Notify your friends and neighbors. In-depth background checks involve phone and on-site interviews with neighbors and other associates—and not just the ones you put down as references. Alert them before they're called, so they're less suspicious and more helpful when the phone rings.

  • Be honest. Check that résumé one more time for any overstatements or inaccuracies. A 2001 survey by executive recruiters Christian & Timbers revealed that one out of four executive résumés contained falsehoods—and being caught in a lie can kill your chances right from the start.

The Americans with Disabilities Act was designed to prevent employers from discriminating against physically challenged but otherwise qualified candidates, yet its privacy protections can extend to anyone seeking gainful employment. For example, the ADA prohibits employers with 25 employees or more from asking health-related questions that could indicate evidence of a disability prior to the job offer. Banned questions include:

  • Do you have a heart condition?

  • How many days were you sick last year?

  • Have you ever filed for worker's compensation?

  • Have you ever been treated for mental health problems?

  • What prescription drugs are you currently taking?

For more on what employers can and can't ask under the ADA, see http://www.eeoc.gov/facts/jobapplicant.html.

Bury the Dirt

The Annoyance:

So once they dig up all this dirt on me, what happens to it?

The Fix:

That depends on how big a job you're applying for, as well as where you live. The Fair Credit Reporting Act requires companies that use a third-party consumer reporting agency (e.g., Experian or ChoicePoint) to properly dispose of the records after the check is completed. That includes electronic copies as well as paper. Sounds good, right? But in this law there are some gaping holes that still allow some employers (and potential employers) to hang on to your personal information.

For one thing, the law never defines what it means by "proper disposal." So, for example, a firm could merely throw out the paper report and delete electronic copies, which, as we know, doesn't really erase anything (see Chapter 2, "Complete Delete"). A dumpster diver or a moderately knowledgeable computer snoop could easily gain access to your report.

Worse, the law doesn't apply to anyone who's up for a job that pays more than $75,000 a year, which is where the most extensive background checks are performed. It may not apply to some smaller businesses (those details were still being worked out as this book was being written). And if your employer ran a check on you a year ago, tough luck—the law only applies to background checks that took place after December 1, 2004.

The solution: ask to see what's in your file. Though most private employers aren't obliged to show you, they might do it anyway out of goodwill. And be sure to quiz your company's HR department about how it secures personnel records (see "Beware Employee ID Theft,").

Avoid Questionable Questions

The Annoyance:

Before I took a job at my company, I was asked to take a 200-question personality profile that probed me for all kinds of invasive information. What can happen to my answers?

The Fix:

Just about anything, so be careful what you say. Tena Fiery of the Privacy Rights Clearinghouse advises job applicants to beware of open-ended questions, such as "Have you ever been arrested?" The Federal Credit Reporting Act limits employer queries about arrest records to the last seven years (though there is no time limit for convictions). Equal Employment Opportunity laws also limit questions relating to gender, race, sexual orientation, and certain medical conditions (such as pregnancy).


Posting your résumé online is faster, easier, and a lot more efficient than printing cover letters and licking stamps. But according to a November 2003 report by the World Privacy Forum, it's also far less private. Many omnibus job sites ask for sensitive information they're not entitled to and share it with third parties. Some have been found guilty of selling résumé data without permission. And some offer minimal protection from hackers or identity thieves.

  • When you can, post your résumé directly to a prospective employer's web site, not via a third-party job board. The fewer stops your résumé makes along the way, the less likely your information will be lost or misused.

  • If you're applying for jobs at large companies that handle thousands of applicants, it may use a third party (e.g., Monster.com or CareerBuilder.com) to process résumés. Find out who handles applicant data, and read that site's privacy policy carefully.

  • Don't post your résumé to any site that lacks a privacy policy or whose policy is deficient. For example, if the policy states the site now owns your résumé information and/or shares your data with third parties, don't use it.

  • Check the policy to see how long your résumé will be stored on the site, and only use sites that let you edit or delete you résumé at any time.

  • Avoid using your real name or email address. Some job sites let you mask your identity until a potential employer indicates interest. If the job board doesn't let you mask yourself, use a disposable email address for your primary contact info. Yahoo Mail Plus, Zoe Mail, and Hushmail all let you create temporary mail IDs.

  • Never put your Social Security Number or date of birth on your résumé. You can always provide these to the employer later when they offer you a job. If a site requires you to submit your SSN—as many government job boards do—you may want to mail in your résumé or find an alternate way to apply.

  • Check out professional résumé writing services very carefully before hiring one. They may also be in the business of selling your information to marketers.

  • Don't put names or contact information for your references on your résumé. If you do, don't expect a glowing reference from someone whose privacy you've just compromised.

  • For more information on how to protect your privacy at online job boards, see Pam Dixon's Job Search Privacy site (http://www.jobsearchprivacy.org).

If the questions are inappropriate to the job you're applying for, you could sue the employer under several privacy torts, says Don Harris, principal of HR Privacy Solutions (http://www.hrprivacy.com), which advises multinational corporations on personnel privacy issues. (Fear of lawsuits may be one reason why the number of companies requiring psych tests for job applicants dropped from one-half in 1998 to one-third in 2001, according to those relentless survey-takers, the American Management Association.)

In July 2000, Rent-A-Center paid a $2.2 million settlement to some 1200 applicants who were asked to fill out a 502-question form that asked, among other things, whether they had ever engaged in "unusual sex practices" (making one wonder exactly what kind of appliances Rent-A-Center carries). In December 2001, Wal-Mart agreed to pay a $6.8 million settlement after the Equal Employment Opportunity Commission sued the mass-market retailer for using a questionnaire to discriminate against handicapped applicants—a violation of the Americans with Disabilities Act.

Of course, some companies will still ask illegal questions, intentionally or otherwise. A reasonable response is to sidestep questions that make you feel uncomfortable without making a Federal case out of it. If a potential employer asks if you've ever been arrested, you can say something like "They keep trying, but they've never been able to catch me" or "my record is clean," without going into the details of some youthful mistake from 20 years ago. (The Technical Job Search site offers more tips on how to handle unlawful questions at http://technicaljobsearch.com/interviews/illegal-questions.htm.) Then again, if a company insists on asking nosy questions about your past (or your unusual sex practices), maybe you don't want to work there.

If your boss asks you to take a lie detector test, you can tell him (or her) to go stuff it. The Employee Polygraph Protection Act prohibits private employers from requiring applicants or employees to submit to lie detector tests, or disciplining those who refuse to take such tests. The exceptions? If you're applying for certain jobs (armed guard, pharmaceutical rep) or if you're accused of theft or embezzlement, you can be asked to strap on the electrodes. (For more on the law, see http://www.dol.gov/dol/compliance/comp-eppa.htm.)

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