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What are the requirements relating to advertising open positions?
None—other than to ensure equal opportunity employer designation.
What can employers do with regard to background checks and inquiries?
(a) Criminal records and arrests
Tennessee has not passed any legislation regulating background checks and inquiries but does require that some employers check criminal conviction records (though not arrest records). Employers should be mindful of federal laws limiting the use of criminal and arrest records in employment decisions, however.
(b) Medical history
Although no specific prohibition exists in the Tennessee Disability Act, employers are likely prohibited from checking medical history before employment, as with the Americans with Disabilities Act.
(c) Drug screening
Yes. Employers that comply with the Tennessee Drug-Free Workplace Program are eligible for several workers’ compensation-related benefits. Private employers that wish to participate in the program must conduct:
- job applicant testing for drugs following a conditional offer of employment;
- reasonable suspicion testing of employees whose behavior indicates that they are using or have used drugs or alcohol in violation of the employer's policy;
- post-accident testing;
- follow-up drug testing after treatment for drug or alcohol-related problems; and
- routine fitness for duty testing of employees, if such testing is required by the employer’s written policy.
Testing of public employees is subject to state and federal constitutional limitations. Positive tests must be verified by a confirmation test and by a medical review officer before an employer may discharge, discipline, refuse to hire, discriminate against, or request or require rehabilitation of an applicant or employee (T.C.A. § 50-9-101, et seq.).
(d) Credit checks
Tennessee follows the legal rules set out in the Fair Credit Reporting Act and has not passed legislation prohibiting employers from pulling credit reports or from using such reports when making a hiring decision.
(e) Immigration status
Yes—it is required under the Tennessee Lawful Employment Act, effective January 1, 2012. The act requires all employers in Tennessee to demonstrate that they are hiring and maintaining a legal workforce. T.C.A. §50-1-103(c) and § 50-1-701, et seq.
(f) Social media
Tennessee’s Employee Online Privacy Act of 2014 prohibits employers from:
- requiring or requesting employees or applicants to disclose passwords to personal online accounts;
- compelling employees or applicants to add them to their personal online account contact lists;
- compelling employees or applicants to access personal online accounts in their present so that the employer can view the contents; and
- taking adverse action, failing to hire, or otherwise penalizing employees or applicants because of a failure to disclose such information or to take such actions (Tenn. Code Ann. § 50-1-1001, et seq).
Eligibility to work verification requirements.
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