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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6949
Experience:  Significant experience in all areas of employment law.
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I have been at my present job for over 10 years as a patient

Customer Question

I have been at my present job for over 10 years as a patient care tech. working with dialysis patients in California. Our company was bought 6 months ago by Fresenius Inc. and now is requiring all employees to have a background check, credit check, credential check and drug screen done. We were told we had to give our consent in order to keep our job. Can a company invade your privacy this way? Also, we are required to do a urine test (at labs that are not in the city that we live), without getting paid for the time to do this. Is this an hour and wage issue?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to answer your question. My goal is to answer your question completely and thoroughly and to provide excellent service.

This is a mixed bag. An employer retains the freedom to conduct background checks and credential checks at any time. No privacy interest or other employee right is at stake, since the information obtained in a background check would be publicly available and an employee has no right to shield information from their employer relating to credentials.

In regard to credit checks and drug tests, however, things are quite different.

Specifically, effective January 1, 2011 a new law (AB 22) came into effect that prohibits the use of a consumer credit report for employment purposes, with certain limited exceptions. Those exceptions are listed ver batem as follows:

(1) Certain Management. The law permits credit checks for certain employees working in a managerial position. The definition of “management” is very specific and does not include just any supervisor. The employee must be a salaried exempt employee covered by the “executive exemption” under California Wage Order 4. Employers may not conduct credit checks on supervisors who do not qualify for the California executive exemption. Apparently the law prohibits credit checks on executive employees who are not covered by Wage Order 4. There are 17 Industrial Wage Orders, which apply to various industries. Wage Order 4 covers “Professional, Technical, Clerical, Mechanical and Similar Occupations.” The 16 other wage orders cover manufacturing, hospitality, retail, transportation, agriculture, amusement/recreation, construction, and numerous others. Because the definition of “managerial position” under AB 22 specifically states that it applies to Wage Order 4 executives, arguably there are a great number of companies who can no longer conduct credit checks on managers.

(2) A position in the state Department of Justice.

(3) Law enforcement positions.

(4) Legal mandate. AB 22 creates an exception to the ban on credit checks where state or federal law requires an employer to conduct a credit check.

(5) Access to personal data. A position that involves regular access to any person’s (A) bank or credit card account information, (B) social security number, and (C) date of birth. This exception does not apply to employees who routinely solicit and process credit card applications in a retail establishment.

(6) Financial responsibility. A position in which the person is, or would be, any of the following: (A) A named signatory on the bank or credit card account of the employer. (B) Authorized to transfer money on behalf of the employer. (C) Authorized to enter into financial contracts on behalf of the employer.

(7) Trade secrets. A position that involves access to confidential or proprietary information.

(8) Access to cash. A position that involves regular access to cash totaling $10,000 or more of the employer, a customer, or client, during the workday.

(9) Certain financial institutions subject to the Gramm-Leach-Bliley Act, which includes banks, mortgage lenders, loan brokers, certain financial or investment advisers, tax return preparers, and others.

In these cases, credit checks are permissible--otherwise, an employer may not check the credit of their employees.

Drug tests are a source of much controversy, and the law surrounding their permissibility is complex. While pre-employment drug tests are permissible as are drug tests of existing employees premised on a reasonable suspicion of drug use, random drug testing or blanket drug testing of existing employees is generally regarded by the courts as an unreasonable invasion of privacy. Cases upholding random or blanket drug testing of existing employees are limited to instances where employees work in positions critical to public safety or the protection of life, property or national security (e.g., truck drivers and aviation personnel).

So to summarize, while background checks and credential checks are typically permissible, credit checks are permissible only in certain limited fields, and drug tests of existing employees are permissible without suspicion of drug use only in certain positions critical to public safety or the protection of life, property, or national security.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

If you do not have any further concerns, I would be very grateful if you would give my answer a positive rating and click submit, as this is the only way I will receive credit for assisting you. If you have any additional concerns that you would like me to address, please feel free to let me know by hitting the REPLY or CONTINUE CONVERSATION button and I will be more than happy to continue assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Thank you and very kindest regards.
Patrick, Esq., Lawyer
Satisfied Customers: 6949
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
Thanks, but I am still a little confused. As a dialysis tech. (certified by state and fed) performing dialysis on patients, can this qualify as safety justification for doing blanket drug screen? Am I considered a "new employee" though I have been working at the same clinic for over 10 years long before the clinic was "bought out" approx. 6 mo ago? And I didn't get a reply to the wage and hour issue of having to travel to another city to do the drug screen on my own time. I am a non union, non management, punch the time clock type worker. Also do they "own" this information if I give my consent (which we were told we had to do to keep our job) and can they share any of this info with other entities in the future such as insurance companies? Can they screen for lipid panels or other things that might lower their group insurance rates etc? If I wanted to sue this company down the road, can they use this info against me? The whole thing opens up a huge can of worms. This company has a very bad reputation according to their history of lawsuits. This is seriously stressing myself and other workers out (!) Thanks.
Expert:  Patrick, Esq. replied 2 years ago.
Thank you very much for your reply and positive rating of my service so far.

Typically when an employee's company is "bought out," they are not regarded as a new employee for the purpose of drug testing.

Unfortunately, however, this is likely irrelevant as employees in the medical profession are generally regarding as being in a "safety sensitive" position and thus, are subject to blanket or randon drug testing. See AFGE v. Derwinsky, 777 F.Supp. 1493 (N.D. Cal. 1991).

I apologize for not addressing your wage and hour inquiry. In general, an employer must pay an employee for all time in which they are "under the control of" the employer. If a drug test is mandatory, an employee would be under the control of their employer when they go to it and thus would be entitled to compensation for that time, typically speaking.

Results from medical tests and drug tests typically cannot be shared with third parties absent the employee's consent, and it would likely constitute a privacy violation to perform lipid tests or search for anything other than drugs, since the sole justification for such blood or urine test would be "public safety."

Again, I sincerely hope that this information helps you and I wish you the best.
Customer: replied 2 years ago.
Thanks LegalPro 54.
2 more questions: If I decided to sue this company for example, the wage and hour issue, invasion of privacy, emotional distress, possible future unfair termination, (b/c of hostile enviro/whistle,blower due to my questioning these issues) or whatever down the road #1: would I, in "discovery", be able to obtain access to any and all info. they gathered during this background scrutiny? #2: If I give consent now for all their requests (in order to keep my job), could this consent hurt a case filed later re these issues?

I realize they are a formidable foe, and would blizzard me with further requests, but I feel my past work history/background is above reproach. I. know of firms that would probably want to take this on as a class. I also know I would most likely lose my job, and what a huge personal toll and stress this would be but I am appalled by the intimidation tactics and am serious about considering this option. Thanks again for your insight.
Expert:  Patrick, Esq. replied 2 years ago.
Thank you again for your reply.

An employer is prohibited by law from retaliating against an employee in response to that employee enforcing any rights under the Labor Code for unpaid wages, etc. I won't say that it doesn't happen, because employers don't always follow the law, but an individual in your circumstance would have a very reasonable case for wrongful termination if you filed a wage claim and then, without any previous performance issues, were terminated shortly thereafter.

To answer your first question, the answer is that yes, you would through the discovery process typically be entitled to copies of all drug tests, background checks, and credential checks that your employer obtained from you.

To answer your second question, giving consent to a drug test would not typically preclude an employee from later filing suit for invasion of privacy stemming from that drug test. Courts realize that employees are under tremendous pressure to consent to such tests and that very often, their continued employment is made contingent upon consenting. Quite simply, consent is irrelevant.

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