Is this a test?
Is it legal for me to ask my potential employees or independent contractors to take an assessment test to test their knowledge prior to hiring? I’m thinking such a test may be useful for me in my search for additional help. Also, is it legal to ask current staff to take an assessment test? What about personality tests?
It’s generally legal for you to require an aptitude test for both prospective and current employees and/or independent contractors, so long as your testing policy is implemented uniformly and consistently, and you have a legitimate business-related purpose to administer the test.
Before implementing any form of employee testing, confirm that there is a business necessity for the test, and that the test has been professionally designed to evaluate the test subject’s ability to perform their assigned tasks, or to discover risks employees may pose to themselves or others.
Employers should have a substantial interest in obtaining the desired information—in other words, the test should be carefully directed at only job assessment information, and the test, testing conditions and results should not be discriminatory. Testing can discriminate “on its face” or as applied, where a test or testing conditions might have a disparate impact on a protected class. If there is a less intrusive means available to you to obtain the same information, you should use those means instead.
It’s safer if an outside group professionally develops, validates and regularly updates your assessment test. An outside test can minimize the risk that it will delve into dangerous subject areas, such as constitutionally-protected beliefs and privacy, or would have a disparate impact on a protected class. Be careful to ensure that any test taker with known disabilities are provided with reasonable accommodations.
Be very careful about how you handle adverse test results. If you’re going to have a testing policy, it’s key to uniformly implement the test and its results.
Personality testing might not pass the “business necessity” test but psychological testing can be an effective way to determine whether an employee fits a certain position. Some examples of these tests include the Meyers Briggs Type Indicator and the DISC Assessment (Dominance, Influence, Steadiness, Conscientiousness/Compliance).
These kinds of tests can help employers determine whether someone has the right skills for a specific job—for example, if you’re looking for a manager you may want someone who can demonstrate that they work well with others.
Before you give a psychological test, make sure the test doesn’t constitute an invasion of privacy by being able to show that you have a compelling business interest for giving the test.
Mary Luros is a business law attorney with Hudson & Luros LLP in Napa, and can be reached at firstname.lastname@example.org. The information provided here is not legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information.