Pre-Employment Testing: Can You Do It?

Lots of business use tests prior to hiring a new employee. These can be skills tests such as math; aptitude (which are frequently done for sales positions); or personal instincts). Done properly, these tests can greatly reduce turnover and improve chances for a successful hire.

But there is a significant downside, if these tests are done improperly, not employment-related, or have the possibility of generating a pattern of discrimination. The classic example of the latter is Federal Express, which in 2007 reached a $55 million settlement as a result of a lawsuit that alleged FedEx used a ‘basic skills test’ for promotions. 86% of white employees passed the test, compared to 47% of blacks and 62% for latinos.

Make sure you use the following guidelines when evaluating or considering pre-employment testing:

  1. Know when to administer the test (pre-job offer or post-job offer)
  2. Make sure the company you use to conduct the testing has validity – they have proof that the test is non-discriminatory
  3. Make sure the test is employment related for the position (for example, you don’t want to administer a math aptitude test for a dockworker).

Finally, make sure to review your program frequently with your HR Department or employment attorney.

Courtesy and Baker Hostetler

Pre-Employment Drug Testing

There’s a fine line between what is desirable and what is legal in the workplace. Many employers would like to institute random drug testing of current employees, or pre-employment drug testing.

If you have such a policy or are considering one, make sure to consult an employment attorney. The laws in this area change so frequently, it’s difficult to know what is acceptable and what isn’t.

For example, a candidate for a part-time page at a city library in Oregon was required to take a drug test. She refused and sued. The Ninth Circuit Court of Appeal upheld, deciding this was a violation of the 4th Amendment. (Lanier v. City of Woodside)

In California, pre-employment testing is – in many cases – acceptable. But ask yourself what would require the need for drug testing? If it’s a receptionist, what is the rationale? It’s more understandable if the position requires an employee to drive, or handle cash, or operate machinery. Make sure your decision to drug test is correct for the position and your company, and always consult counsel before implementing such a plan.

From Barker Olmstead & Barnier.

Personality Tests Prior to Hiring

The phalanx of assessment tests available to employers as they interview job candidates continues to grow.

The challenge is to decide between purely objective criteria (who is the most qualified person for the job) and subjective (who will be the best fit for my company).

Not all assessments are suitable for use as pre-employment assessments. Psychological assessments that were designed for clinical or diagnostic use, for example, should not be used. The courts have consistently ruled that psychological testing generally has no place in the business environment.

An assessment – properly administered – is invaluable to the hiring process and can increase your productivity while reducing your turnover. I personally favor and administer the Kolbe Assessment program. But find out what works best for you – make sure to involve an expert in the process.

Some excellent advice – some of which I’ve included here – is from Penny Morey in this article at

Increased Penalties for Immigration Violations

The ICE crackdown continues, with increased penalties for employers who knowingly employ unauthorized aliens that are now in affect.

  • First violation for knowing employment of an unauthorized alien, $375.00 (previously $275.00)
  • First violation maximum penalty, $3,200.00 (previously $2,200.00)
  • Multiple violations maximum penalty, $16,000.00 (previously $11,000.00)

All of these fines are per person. So if you’re employing 10 authorized aliens, it’s $375 per person you illegally employed.

Make sure to audit your employee files and I-9 procedures.

Credit Checks on Job Candidates.

Currently, it is legal to conduct a credit check on a job candidate, except in Wisconsin.

The usual pre-employment testing criteria applies: the candidate must give their written approval, and the check should be conducted after a job offer is extended.

Although attorneys and the courts will ultimately decide the legality of such a check, employers should carefully evaluate whether or not to conduct such a check. My rule of thumb as a best practice is to always make sure all pre-job testing as a valid business reason. (A secretary does not need to lift 100-lb. boxes, for example).

Here are some guidelines to consider before implementing a credit check:

  1. Is there a business need? If an employee will be handling cash, or managing financial transactions, the answer would be yes. But if the open position is working in a warehouse, or as a telephone operator, my suggestion would be ‘no’.
  2. If you elect to conduct credit checks, you must be consistent: you can’t just single out one candidate for a credit check; all candidates applying for the selected positions must be checked.
  3. Follow the guidelines establish by the Fair Credit Reporting Act (FCRA).
  4. Notify the candidate when an adverse action is taken (such as not hiring) on the basis of such reports.
  5. You must also identify the company that provided the report, so that the accuracy and completeness of the report may be verified or contested by the candidate.

(Courtesy Tampa Bay Online, via McClatchy Newspapers.)

The Pitfalls of Hiring a Jerk

The cost of employee turnover – in pure dollars – is ever increasing.

Although techniques are available to mitigate the cost of bad hires, it’s up to the hiring manager to determine whether or not a candidate can work well with others. It’s a difficult decision – if someone is highly qualified, but has an attitude – do you hire them? What is the effect of a ‘jerk’ on your team?

I once interviewed a candidate for a sales manager position. He had eight years of management experience, an MBA, and all the credentials.

Starting the interview, I asked him to tell me about himself.

“Why do you want to know? You’ve seen my resume.”

“Yes, but I’d like to hear you talk about yourself.”


“Because I’m interviewing YOU,” I said.

It went on and on, and I realized that – although this person was highly qualified on paper, he was such a jerk that my other managers and employees would eventually have serious relationship problems with him (to say nothing of me – I was ready to kill him, and it was only the first interview).

Needless to say, he was not hired.

Companies are getting much more discriminating in weeding out potential jerks in favor of finding the best fit for the company.

From Newsday.

How To Handle Maternity Leave

Maternity leave is always a tricky issue – not just because of the federal Pregnancy Discrimination Act (which applies to businesses with 15 or more employees), or California’s Pregnancy Disability Leave (which applies to all businesses).

The additional issue is ‘reasonable accommodation’. While you as a manager must treat pregnant women equally, it is advisable that you treat them with utmost courtesy and accommodate their needs as much as practicable.

Although each situation is always difficult, consistency in treating your employees is essential.

This article, via CePro, is a good start.

And get your policy in writing right way!