Employment Tests

Employment Tests

  • Purpose of Employment Tests: Used by employers to aid in hiring, promotion decisions, and evaluating employee fitness for job continuation.
  • Types of Tests:
    • Drug Tests
    • Medical Examinations
    • Genetic Tests
    • Polygraphs
    • Honesty Tests
    • Psychological Tests
    • Intelligence and Skill Tests
    • Physical Fitness Tests
  • Legal Concerns:
    • Discrimination
    • Invasion of privacy claims

Drug Testing

  • Types of Samples: Employers test urine, blood, saliva, or hair.
  • Testing Conditions:
    • Pre-employment
    • Post-accident
    • Random testing based on a specified percentage of workforce
    • Cause testing, when reasonable suspicion arises
  • Limitations of Drug Tests: Cannot confirm how drugs were ingested, quantity taken, or current impairment.
  • Positive Test Rates:
    • In 2020, 4.4% of nearly 7 million tests were positive.
    • Marijuana use has increased as a cause for positive results.
Employee Rights on Drug Testing
  • Generally, employees have minimal legal rights to refuse drug testing.
  • State laws vary, with some states having protections against certain types of drug testing (e.g., New York City prohibits pre-employment marijuana tests).
  • Unionized employees must negotiate drug testing with their unions.
  • Fourth Amendment Issues: Drug testing can be challenged as an unreasonable search; employers must justify the need for testing.
Drug Testing Procedures and Regulations
  • Common Requirements:
    1. Written notice of required testing
    2. Copies of substance abuse/drug testing policies
    3. Use of licensed laboratories
    4. Confirmatory tests upon request
    5. Written results to employees
    6. Opportunity for employees to explain positive results
    7. Respect for privacy during sample collection
  • Omnibus Transportation Employee Testing Act: Federal law mandating testing for employees in transport-related occupations.
Use of Drug Test Results
  • Employers may terminate based on positive test results, but claims of discrimination based on test results require careful consideration of disparate impact.
  • Drug test results are confidential; inappropriate disclosure can lead to defamation claims.

Medical Examinations

  • Definition: Procedures identifying impairments or health status.
  • ADA Considerations: Restrictions on medical exams prior to conditional job offers, limited to job-related exams for current employees.
  • Job-related Criteria: Required when there is evidence that medical conditions affect job performance or pose safety risks.

Genetic Testing

  • Concerns: Genetic testing can reveal predispositions to medical conditions, raising potential misuse by employers.
  • GINA (Genetic Information Nondiscrimination Act): Prohibits employers from acquiring genetic information except under strict parameters.

Polygraphs and Honesty Tests

  • Polygraphs: Measure physiological responses but do not detect deception directly; heavily regulated under the Employee Polygraph Protection Act.
  • Honesty Tests: Alternative to polygraphs; less regulated but still require careful implementation to avoid discrimination.

Scored Tests of Ability

  • Employed to assess desirable employee characteristics (intelligence, aptitude, etc.).
  • Tests must be valid and non-discriminatory; require monitoring for disparate impact.
  • Four-Fifths Rule: A selection rate of under 80% compared to the most successful group suggests discrimination.
Validation of Tests
  • Content Validation: Proves tests measure job-related criteria.
  • Criterion Validation: Correlates test scores with job performance outcomes.
Cutoff Levels
  • Employers should set reasonable cutoffs for test scores without racial or gender biases; feminist tests must relate to job performance expectations.
  • Banding Scores: Allows for flexibility to reduce discriminatory impact.
Accommodating Disabled Persons
  • Employers must accommodate disabled individuals in testing processes as per ADA; accommodations must be requested when needed, and organizations should be transparent about testing formats.