Created by FindLaw's team of legal writers and editors | Last reviewed February 20, 2018
Finding a job these days often requires more than filling out an application and providing a resume and cover letter. More employers are using pre-employment tests to help determine which candidate in a pool of applicants is best qualified to perform a particular job's duties. These tests range from basic drug screenings and skills tests to more advanced--and potentially problematic--tests such as psychological and personality tests.
There are state and federal laws which protect employees before hiring, and of course, even more laws protecting employees after they are hired. Laws protecting prospective employees largely revolve around anti-discrimination policies. Employers are prohibited from discriminating in the hiring process on the basis of race, gender, national origin, sexual preference, and disability. Certain pre-employment tests may on their face violate these laws, or may do so by being applied incorrectly.
As drug abuse becomes a more prevalent problem, drug testing has become a more commonplace method of screening drug and alcohol abusers before hiring. Not only is it a screening tool to prevent harm to the company by a drug abuser, it also serves as a shield against liability should an employee be accused of wrongdoing.
Drug testing laws vary from state to state, and industry to industry. Some states prohibit the use of drug testing, others allow it for certain industries, and still others allow drug screens for any profession. Certain industries such as railroad and public transportation are required to administer pre-employment drug tests.
For more information on your state's laws with respect to pre-employment drug testing, visit the U.S. Chamber of Commerce.
Skills tests are typically used to determine whether an applicant has the necessary skill to perform a job function and to determine for what level a candidate should be hired. These tests are widely used, and are generally safe to administer, with the caveat that the test must apply to a skill necessary for the position.
Testing Candidates with Disabilities
The Americans with Disabilities Act (ADA) makes it unlawful for private employers with 15 or more employees and local, state, and federal government employers to discriminate against qualified applicants with disabilities. This means that employers to whom the ADA applies must take care that any pre-employment testing analyzes skills and does not screen out disabled candidates simply because they are disabled.
The ADA requires that employers administer skills tests in a manner or format that doesn't require the use of the impaired skill unless the test is designed to test that skill because it is necessary to carry out the job description. Additionally, the ADA requires employers to make reasonable accommodations for people with disabilities when giving tests. Employers are not required to make accommodations which would unduly burden the employer, however.
In order to best comply with the requirements of ADA, employers should, whenever possible, avoid giving pre-employment tests that may pose problems for persons with impaired sensory, speaking, or manual skills (and certain learning disabilities, such as dyslexia), unless they are skills required to perform the job, as in the example above.
Aptitude, Personality or Psychological Tests
Some companies have also chosen to make use of tests which purport to predict with a degree of certainty the best method to maximize an applicant's abilities, or whether they are even a good fit (skill and personality wise) for a certain job.
Legally, these tests are fraught with problems, most notably that they can easily be construed as discriminatory against certain groups of applicants (e.g., minorities and women). Tests which probe too deeply into an applicant's personality may also violate state and federal laws prohibiting employers from asking questions pertaining to sex, gender, religious beliefs, national origin, etc.
While all employers would love to know to a high degree of certainty whether an employee was a truthful person or not, the federal Employee Polygraph Protection Act (EPPA) prohibits the use of polygraph tests on employees, except in certain industries. Those exceptions include armored car personnel and personnel involved in the health and safety of the public, limited exceptions that don't apply to most businesses.
The Americans with Disabilities Act prohibits employers from inquiring about the medical history of applicants. Once hired, however, employers have a limited right to require medical exams as long as they are "job related and consistent with business necessity."
All medical tests must be required of all similarly situated employees. By requiring only certain people to submit to medical testing (particularly those with disabilities), employers open themselves up to liability.
Credit and Consumer Reports
Certain businesses which seek employees who will handle cash may want to use credit reports to help determine whether they are financially responsible individuals. While employers may use credit and consumer reports, they must get the applicant's written permission, as such reports are inherently private. Furthermore, the permission must be given separately from permission for anything else.
Discuss Pre-Employment Tests with an Attorney
If you're implementing a pre-employment test for your business, you'll want to ensure that you get the information you need without exposing yourself to accusations of bias.The best way to do this is to reach out to a local employment law attorney who can review your pre-employment tests to make sure that they're in compliance with the law and answer any employment law questions you may have.
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