Pre-employment tests are becoming increasingly popular within big and small businesses’ human resources departments, including within the hospitality industry. Pre-employment tests have been associated with several benefits including improved job performance and decreased employee turnover. A variety of pre-employment tests are being used by employers to narrow down the applicant pool and hiring the best employees. However, there continue to be concerns surrounding validity, potential for discrimination, and high costs of administration when administering pre-employment tests.
With serious legal implications associated with assessment tests, it is essential that employers thoroughly examine whether testing is appropriate and if their testing violates any law. By knowing the allied risks and benefits, hospitality employers can be cautious in choosing testing methods that works best for them.
These tips can help employers pick suitable pre-employment testing methods while circumventing the probable hazards.
1. Legal Constraints Regarding Pre-Employment Testing
The use of certain pre-employment tests may violate federal and state nondiscrimination laws. On the federal level, the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA) prohibit the use of discriminatory employment tests and selection procedures. Title Seven prohibits intentional discrimination based on race, color, religion, sex or national origin. And the ADEA prohibits intentional discrimination based on age, 40 and over. These titles also prohibit employers from using neutral tests that have the effect of disproportionately excluding persons on these bases unless the tests or selection procedures are job-related and consistent with business necessity.
The federal Employee Polygraph Protection Act and most state laws prohibit employers, except under very limited circumstances, from requiring or even requesting an employee or applicant to take a lie detector test as a condition of employment or continued employment. Under the federal law, a lie detector test includes everything from an actual polygraph exam to psychological stress evaluators.
In addition to federal law, state nondiscrimination laws may also apply to pre-employment testing including for employers with fewer than 50 employees before administering a test or other selection procedure. For example, California and Rhode Island’s polygraph-protection laws require that honesty and integrity exams not be the primary basis for making hiring, firing or promotion decisions. While Wisconsin has a statute in place that allows employees to challenge “unfair honesty tests.” With these limitations, an employer is left with few options to investigate an applicant or employee’s honesty.
The Americans with Disabilities Act (ADA) also imposes restrictions on employers about asking job applicants to answer medical questions, take a medical exam, or identify a disability. For example, an employer may not ask a job applicant about their disability. An employer also may not ask a job applicant to answer medical questions or take a medical exam before making a job offer. The ADA also demands that employers administer skills tests in a manner that doesn’t require the use of the impaired skill unless the test is designed to test that skill as necessary to perform the described job.
2. Background Checks
Background checks provide information related to employment history, education, criminal record or financial history of the candidate. The extent to which an employer may consider the findings from background checks is regulated by federal law. Laws can also vary from state to state. It is important to consult with an employment attorney before conducting any background checks. Before getting the report, the employer must make the candidate aware that this information may be used to make a decision related to their employment, and must obtain written permission from the candidate in advance.
Similarly, there are restrictions on acquiring, maintaining and using medical information generated from a pre-employment physical or other medical examination.
Employers must take proactive steps to maintain the confidentiality of test responses. Using a third party for administering the tests not only allows applicants to take the assessment through an unbiased third party who keeps their actual responses confidential but also protects the employer from violating confidentiality.
3. Pre-Employment Testing Can Guard Against Negligent Hiring
While being cautious when using pre-employment testing looks rational, there exist legal trends that argue in favor of such assessments. With negligent hiring now recognized in most states, employers are accountable for crimes such as thefts, battery or assaults committed by employees that victimize customers and/or other employees. Liability in such situations falls on the employer for negligently placing someone with harmful propensities into a position where it was predictable that the hired person posed a risk to others. Employers are held liable for negligent hiring or retention of dangerous or incompetent employees in most states, including, among others, Alaska, California, Florida, Georgia, Illinois, Kansas, Maryland, New Mexico, and New York.
Pre-employment testing plays a vital role in ensuring that the applicant being hired is suited for the job. In addition, background checks can help prevent hiring a potentially dangerous individual.
4. Pre-Employment Testing May Aid in Detecting Applicant Faking
Another criticism associated with self-reported personality assessments is that job applicants may give responses that they think the employer wants. In other words, applicants can fake the answers. An online test which is not taken on-sight can be completed by anyone on behalf of the candidate. Even the cheat-sheets and the advice on ways to fake these tests are easily available online. So how can employers alleviate this risk of an applicant faking a personality or EQ test?
A series of tests can be implemented to see if an individual is consistent in their answers. Limiting the response time of each question may generate the most genuine response by offering less time for fabrication. Conducting the tests on-site minimizes the risk of cheating to a great extent. But countermeasures such as these may produce less reliable results and cause unnecessary inconvenience to, or even filter out, the genuine applicants.
Interestingly, some psychology researchers argue that the faker might actually be the one you’d want to hire. A person investing energy in figuring out what you want may be more motivated to get the job and to meet the expectations of the employer.
There is no fitting solution to this issue and the employers will have to choose a way that best suits the requirements of the business. Solely relying on personality tests (or any one test for that matter), for making hiring decisions would not be a wise idea. However, it still is a useful tool for filtering a large pool of candidates.
The USA Equal Employment Opportunity Commission (EEOC) offers a number of best practices for employers along with pre-employment testing procedures and laws.
- Administer tests and other selection procedures without regard to race, color, national origin, sex, religion, age (40 or older), or disability.
- Properly validate employment tests for specific positions and ensure they are used for the purposes for which they are intended.
- Consistently utilize pre-employment tests for all applicants for a particular position.
- Use tests that are job-related and of a business necessity. Ensure that the test does not contribute to a finding of a particular mental or physical impairment.