HR Law Ch. 6: Employment Tests

Two primary ways to establish validity

1. Content Validation: a test has content validity to the extent that it requires the performance of the same behaviors and skills as the job in question. (word processing test for a secretary position) Employers should use content-valid tests as much as possible but not to assess intangible characteristics such as intelligence and not for tasks that could readily be learned on the job. 2. Criterion Validation: demonstrates a statistical association between performance on a test and performance on the job. Can be predictive or concurrent. Predictive or concurrent. A typical measure of association is the correlation coefficient. Positive links with job performance.

What are the most common drug-testing procedures required by state statutes?

1. Employees must be provided with written notice that a drug test is required. 2. Employees must be given copies of the employer's substance abuse drug testing policy. 3. Employers must use licensed laboratories to analyze samples. 4. Employers must confirm tests if requested or allow employees access to samples to have their own tests done. 5. Employees must be given written test results. 6. Employees must be given an opportunity to explain the result if it is positive. 7. Samples must be collected with due regard for employee privacy.

Smart Practice of Drug Testing

1. Notify employees if they are subject to drug testing 2. Notify employees of the circumstances under which drug testing will occur 3. Notify employees of the consequences of testing positive. 4. Carefully label specimens 5. Document chain of custody for samples 6. Respect Privacy 7. Use reputable labs, and monitor their performance 8. Use confirmatory tests 9. Appoint a medical review officer to interpret results 10. After a positive result, seek information about medications the employee is taking. 11. Take into account the medications they are taking that may affect the result 12. Give employees a chance to provide explanation for positive result. 13. Treat all drug tests as confidential 14. Provide rehabilitation drug programs

Accommodating Disabled People with testing

1. The legal responsibility to provide accommodation begins pre-hire 2. Unless the disability is obvious, the employer is not responsible for providing an accommodation unless requested. 3. However, employers should tell candidates about the types of tests that will be used. 4. Finally, employers should document requests for accommodation.

Random Drug Testing

A percentage of the work force is selected for periodic drug testing

Medical review officer

A qualified person to interpret the results and communicate them, and opportunity for the tested employee to explain possible reasons for a positive result.

Genetic Tests

Aimed at assessing the predisposition of persons to develop medical conditions or pass them on to offspring. Knowledge regarding the genetic makeup of humans and the genetic basis of diseases has been rapidly accumulating.

Medical Examination

Any procedure or test that seeks information about an individual's impairments or health. If a test is a medical exam, then it is covered by the Americans with Disabilities Act (ADA)

Polygraph

Does not detect lies, but measures changes in physiological responses. There are concerns about accuracy and intimidations

Race Norming

Employers may not use this or otherwise adjust scores based on protected class characteristics

Americans wit Disabilities Act

Employers must not fail to promote, terminate, or otherwise discriminate against an employee who has undergone treatment for drug addiction and is no longer using drugs. The inquiry must be whether the employee is able to perform the essential functions of the job, with or without reasonable accommodation. (if the applicant is able, the medical condition does not disqualify him.)

Genetic Information Nondiscrimination Act (GINA)

Forbids employers from acquiring genetic information regarding applicants and employees. Prohibits the use of genetic information in making employment decisions.

The Employee Polygraph Protection Act (EPPA)

Forbids private employers from requiring a pre-employment polygraph or other truth-telling devices.

When can Public Employers test for drugs randomly?

If it is for a safety-sensitive job or transportation related

Drug Testing

Occurs under a variety of circumstances. Given prior to hiring, in conjunction with periodic medical exams, for verification that employees who have been through drug rehabilitation programs are staying clean.

Fourth Amendment

Prohibits random drug testing by public employers. Also prohibits unreasonable search and seizure.

Validation Study

Provides evidence that a test is related to job performance. It must be based on job analysis. It is wise for an employer to establish validity before using a test, the EEOC provides guidelines for how to proceed.

Collective Bargaining Agreement

Random drug testing of union members is a topic of mandatory bargaining, and depends on?

Drug-Free Workplace Act

Requires that employers: 1. Develop and communicate policies concerning drug use, sale or possession in the workplace 2. Inform employees about the dangers of drug use and options for counseling and treatment. 3. Establish penalties for drug use violations 4. Report any drug use convictions

Cutoff Levels for Test Scores

Scores are established: those scoring below fail and passing scores may be ranked.

Confirmatory Tests

Second, more sophisticated tests used when initial screening tests come back positive.

Chain of Custody

The parties who handle the sample. Companies have to have documentation of the chain of custody.

Omnibus Transportation Employee Testing Act

This federal law requires drug (and alcohol) testing of employees in transportation-related occupations, including: airline, railroad, trucking, and public transport workers.

Four-Fifths Rule

To determine the significance of the difference, EEOC follows this rule. IF the selection rate (the % of applicants to pass the test, and continue to be considered) for one protected group is less than 80% (4/5ths) of the selection rate for the protected group that was most successful, this is evidence of discriminatory effect.

Honesty Tests

To fill the voide left by the polygraph, many employers have turned to paper-and-pencil integrity tests that are not regulated by the EPPA

Exceptions Regarding GINA

Voluntary Disclosure, medical leave requests, public sources

Scored tests of ability

designed to hire those with desired traits. They measure: intelligence, aptitude, specific job skills or knowledge, work-related attitudes, personality traits, strength and physical fitness. People that score better are hired, tests cannot be discriminatory. -A discriminatory test can be successfully defended by proving that it is job related and consistent with business necessity.

Conditional Offer of Employment

employers are prohibited from requesting or requiring that applicants submit to medical exams before? The employer is free to require a medical exam after a conditional offer has been made because it is based on satisfactory results from the medical exam Medical exams, if used, should be the last tests performed and the last info considered prior to finalizing hiring decisions.