Looked for a job lately? Seasoned job hunter that you are, you may be surprised that your prospective employer is demanding more of you than filling out the obligatory employment application form and having you submit to a job interview.

The purpose of this column is to inform you what rights you have if your employer directs you to tell him if you have ever been arrested or demands that you submit to a drug test or polygraph examination.

Pursuant to the Illinois Human Rights Act, it is a civil rights violation for any employer, employment agency or labor organization to inquire in a written application whether a job applicant has ever been arrested.

If such a question appears on your job application, you can make a complaint to your local Human Rights Commission or the Illinois Human Rights Commission. If it finds the employer has violated the law, the commission can order it to cease and desist in its practice, as well as require the employer to hire, reinstate or upgrade you, with back pay, in addition to awarding you actual damages for the injury or loss you suffered, if any.

Nothing in the law prevents employers from inquiring about convictions you may have on your record, nor from considering unfavorable discharge from military service as a valid employment criterion when authorized by federal law or when the job in question involves the exercise of fiduciary responsibilities.

If you are unsure of the legal status of a criminal case you might have been involved in the past, you can contact the Students’ Legal Assistance Office for assistance.

According to statistics released by the National Institute of Drug Abuse, 30 percent of all Fortune 500 companies and 50 percent of all Fortune 100 companies do some sort of drug testing. Many employers require a prospective employee to submit to a “pre-employment” physical which includes a drug test or is exclusively a drug test.

A clear distinction exists between the rights of private employers and public sector employers to test their employees for drugs. While this area of the law is developing and a few states have passed legislation specifically permitting or prohibiting drug testing of prospective employees by private employers, currently, the general rule is that a private, non-union employer has substantial freedom to test current or prospective employees for drug use.

Several limitations which have or are likely to be imposed by courts include the requirement that tests be confirmed before test results are used in making employment decisions. Under a recent ruling of the National Labor Relations Board, employers are required to bargain in good faith with a union over the implementation of a workplace medical testing program designed to determine substance abuse.

In the public sector, courts have focused on whether the drug testing involved violates an employee’s Fourth Amendment right to be free from unreasonable governmental searches and seizures. A balancing test is used, weighing on the one side the expectation of privacy which a given employee reasonably has in his or her job, and on the other side, the importance of the governmental interests which are asserted as justification for the testing.

Courts have held that even random testing is permissible in certain highly regulated industries, such as for prison guards and nuclear power plant workers, where governmental interests are strong and the employee’s reasonable expectation of privacy is correspondingly reduced.

Public employers also have been held to have the right to require drug testing of employees where the employer can demonstrate a reasonable suspicion that the employee is using drugs.

The Employee Polygraph Protection Act of 1988 makes it unlawful for most private employers to require or even suggest an employee or prospective employee submit to any lie detector test as a condition of employment.

Under the law, employers are prohibited from discharging, disciplining or in any way discriminating against an employee or prospective employee for refusing to submit to a polygraph test unless the employer is investigating an economic loss or injury to the business, the employee concerned had access to the property that is missing or embezzled and the employer has a reasonable suspicion that the employee was involved in the incident.

The act does not apply to federal, state or local governmental employees, persons working in defense or other security-related industries, or employees or companies authorized to manufacture, store, distribute or sell controlled substances.

Employers violating this law are subject to injunction and fines up to $10,000 and can be ordered to employ, reinstate or promote any employee or prospective employee affected by such violation, including paying lost wages and benefits.

Don Henderson

Lynn Richards

Students’ Legal Assistance