Tests at Work: Your Rights
By Olivia Wathne, Esq. | Legally reviewed by Melissa Bender, Esq. | Last reviewed April 08, 2024
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Being given a test before getting a job offer or a promotion is not an uncommon experience for many workers. Today's employers often test applicants in a variety of ways before offering them work. Many also test existing employees before offering them promotions.
It's important for employees to be aware of their rights before taking such tests. Some tests may violate your right to privacy or break anti-discrimination laws. This is when laws come into play about testing at work, including workplace privacy and disabilities laws.
This article lays out some of your rights when it comes to workplace testing. Read on to learn more about relevant employee privacy laws and the types of work tests allowed.
Employee Privacy Laws
A common implication of workplace testing is employee privacy rights. Many workplace tests are legal. If your right to privacy is violated in the process, then you may have grounds for legal action. Employers need to establish clear company policies regarding privacy protections. Privacy issues arise when employers collect or monitor personal information beyond what is necessary for legitimate business purposes.
Employees have a reasonable expectation of privacy in the workplace. A reasonable expectation of privacy refers to the belief that certain spaces and communications will remain private.
Federal laws such as the Electronic Communications Privacy Act (ECPA) and the Employee Polygraph Protection Act (EPPA) help define and reinforce these rights. The EPPA prohibits most private employers from using lie detector tests. However, the law permits polygraph testing of government employees.
Under the ECPA, employers cannot monitor employees' personal emails, text messages, or phone calls without employee consent or a valid business reason.
Types of Workplace Testing
Various workplace tests are conducted to ensure safety, security, and compliance with federal regulations and state laws. The types of tests you may be required to take often depend on your job type. It also depends on whether you are employed by the government or a private employer.
Drug Tests
Employers have the right to conduct drug and alcohol testing as part of maintaining a safe and productive work environment. However, employees also have rights to privacy and fair treatment. These rights include:
- Being informed about the company's drug testing policy
- Consenting to testing procedures
- Having their test results kept confidential
Employees with disabilities related to drug use may be entitled to reasonable accommodations under the Americans with Disabilities Act (ADA). Accommodations can include rehabilitation programs or modified work schedules.
Skills Tests
It's common for employers to test applicants for certain skills before making hiring decisions. For instance, an administrative assistant applicant might undergo a typing test to gauge their ability to manage the workload. Certain professions like police officers or firefighters may require specific skill assessments.
These job-related skills tests are acceptable, but they must relate to essential job functions. For example, typing proficiency is necessary for administrative assistants. Testing candidates on skills unrelated to the job can be illegal. This is pertinent if it disproportionately affects minority groups or other protected categories. For more information, visit FindLaw's Disparate Impact Discrimination.
Physical Tests
Some jobs may have specific physical requirements as part of their description. A warehouse employee might be expected to be able to lift a certain amount of weight. Like a skills test, however, it must bear a clear relationship to the job at issue. A strength test should not require more strength to complete the test than it does to perform the functions of the job.
An employer who does not adhere to this standard runs the risk of facing a discrimination suit if their test eliminates a disproportionate number of one or more of a protected class of job applicants. In addition, employees with disabilities may be illegally impacted by some of these types of tests.
Health Tests
Similar to physical tests, workplaces sometimes conduct fitness and health assessments. Unlike tests of strength or agility, health tests can pose legal concerns. The ADA prohibits discrimination against qualified individuals with disabilities. It also sets rules for when employers can inquire about an individual's health or impairments.
Here are a few important points:
- Employers generally cannot ask job applicants about their health or disabilities until a job offer is extended. This includes inquiries about medical records or medical information.
- After a job offer is made, some employers may request a medical examination or health-related questions. This is legal if all applicants for the same job undergo the same process. The questions or tests must also be job-related and necessary for business reasons.
- The test must not be unfair to protected groups. This includes ensuring that health insurance coverage and medical information are handled in compliance with privacy laws and do not lead to discrimination.
Psychological and Personality Tests
Tests that measure an employee's psychological profile and personality are even more concerning. These tests, by their very nature, can be vague and subjective in results. If these tests have a disproportionate impact based on a protected class, the employer must show that the test is job-related.
Unlike the types of tests listed above, it's not as easy to correlate psychological and personality tests to a particular job function.
Legal Help
If you have been discriminated against due to a test result or have been subjected to illegal testing at work, you should seek legal advice. An employment law attorney can protect your rights and options under the law.
Consider consulting with an employment attorney for experienced help.
Can I Solve This on My Own or Do I Need an Attorney?
- Some employment legal issues can be solved without an attorney
- Complex employment law cases (such as harassment or discrimination) need the help of an attorney to protect your interests
Legal cases for wage and benefit issues, whistleblower actions, or workplace safety can be complicated and slow. An attorney can offer tailored advice and help prevent common mistakes.
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