Many employers like to use pre-employment tests to screen out applicants who are not suitable for the job. These tests include skills tests, aptitude tests, psychological tests, personality tests, honesty tests, medical tests, and drug tests.
Both state law and federal law impose numerous restrictions on what employers can test and how. These restrictions are often vague and open to contradictory interpretations. As a result, you should only use tests that are absolutely necessary and, unless the test is as basic as a typing test, you should consider consulting with a lawyer before administering the test to make sure that it will pass legal muster in your state.
Skills tests range from something as simple as a typing test to something as complicated as an architectural drafting test. Generally speaking, these tests are legal, as long as they genuinely test a skill necessary for the performance of a job.
Some employers use written tests—usually in a multiple choice format—to gain insight into applicant's general abilities, personality, or psyche. These tests are only rarely appropriate, and requiring applicants to take them leaves you vulnerable to various types of lawsuits. For example:
If you do decide to use one of these types of tests, proceed with extreme caution. Make sure that the test has been screened scientifically for validity and that it genuinely correlates to necessary job skills. Review the test carefully for any questions that may intrude into an applicant's privacy.
The federal Employee Polygraph Protection Act generally prohibits employers from requiring applicants to take a lie detector test or asking applicants about previous lie detector tests. The law includes a narrow list of exceptions that apply to, for example, businesses that provide armored car services or security services or that manufacture, distribute, or dispense pharmaceuticals.
Even though there is no federal law specifically prohibiting employers from requiring applicants to take a written honesty test, these tests frequently violate federal and state laws that protect against discrimination and violations of privacy. And the tests are rarely reliable. Prudent employers stay away from them.
To avoid violating the Americans With Disabilities Act, don't ask an applicant about his or her medical history and don't conduct any medical exam before you make a job offer.
Once you decide to offer the applicant a job, you can make the offer conditional on the applicant passing a medical exam. Just be sure you require the exam for all entering employees who are doing the same job. If you only require people whom you believe or know to have disabilities to take the exam, you will be violating the Americans With Disabilities Act.
Although the laws on drug testing vary widely from state to state, employers are generally allowed to test job applicants and reject those who test positive or who refuse to take the test. Some states, however, require employers to follow certain procedures or have certain policies in place. For example, employers might have to give written notice in job postings that drug testing is required, use certified labs for the testing, take measures to protect an applicant’s privacy during collection, and give applicants an opportunity to challenge positive results. (To learn the rules in your state, including the rules for current employees—which are often more restrictive—see our articles on state drug testing laws.)
A drug testing program can lead to discrimination claims if an employer doesn’t test even-handedly. For example, if your company singles out only African American candidates for drug testing, that would clearly violate the law. If your company decides to test only for certain positions, you should test all applicants for that position.
Drug testing can also implicate the Americans With Disabilities Act. Under the ADA, employers may not discriminate against employees who take medications to treat or manage a disability. A drug test might reveal the use of legal drugs prescribed for this purpose. As a result, many states require employers to use a lab that makes a medical officer available to discuss positive results with applicants and give them an opportunity to explain their use of prescription drugs.
For all tests, you must take care to avoid discriminating against applicants who are protected by the Americans with Disabilities Act. To ensure that people with disabilities are not unfairly screened out by your test, the test must accurately measure people's skills, not their disabilities. Ways to do this include the following:
To learn more about testing during the hiring process, see Dealing With Problem Employees, by Amy DelPo and Lisa Guerin (Nolo). Although the book deals primarily with resolving employee problems through evaluations, discipline, investigation, and if necessary, termination, it also includes a chapter on revamping hiring procedures to avoid hiring problem employees in the first place.