Compliance Corner: Can I Share Background or Drug Screen Reports with Customers?

This question has been coming up quite frequently lately. We understand wanting to do it, but we do not recommend it and will not approve the sharing the background or drug screens we have our vendors runs for us with customers or clients

In sharing drug test results, consider this FTC opinion letter: https://www.ftc.gov/policy/advisory-opinions/advisory-opinion-islinger-06-09-98.  What it says is that when a staffing agency shares a drug test result that drug test result becomes a consumer report under the Fair Credit Reporting Act (“FCRA”).  That, in turn, makes the staffing agency a consumer reporting agency (“CRA”) under the FCRA and responsible for complying with all the regulations that govern credit reporting CRAs under the FCRA.  This is something that, quite frankly, USA Staffing Services, nor most staffing agencies are not set up to comply with.  Getting into compliance with the FCRA regulations for CRAs is something that would be quite costly, and perhaps not even technically possible for staffing agencies to do.

As it pertains to background checks, there is a federal court case out of Connecticut, Adams v. Nat’l Eng’g Serv. Corp., 620 F. Supp. 2d 31.  That case held that a staffing agency that shared a background check with a client became a CRA under the FCRA.  Again, this is something which no staffing agency is set up to comply with.

Another thing to consider is whether or not your background check provider or drug testing lab will allow you to share those reports under your contract with them.   Ours specifically states we are not able to.

Finally, there are concerns about state privacy laws and suits that could arise from sharing the results of background checks and drug tests with third parties.

When asked to share these results, we recommend educating the client as to why you can’t comply with requests for copies of drug tests or background checks. We can offer them to explicitly describe the acceptable results on a drug screen or background check in the contract.  We would then attest to the client/customer that all candidates sent to them would meet these requirements provided in the contract.  Most companies are willing to accept this as a reasonable alternative.  If they aren’t, the question is what else are they doing that either skirts or flat-out violate rules that could put you and us at risk, and whether or not you want to do business with someone like that.

These types of questions and issues will consistently be front and center for all employers.  Let USA Staffing Services help relieve you from these types of stresses, so you can focus on growing your business.

Credit my|HR|counsel, one of USA’s Valued Partners.

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