By Joseph Starr, J.D.

Many employers implement pre-employment screening devices, e.g., psychological and physical testing, but fail to appreciate the legal pitfalls associated with such tests.  Here’s a brief overview of some of the legal issues that arise from pre-employment testing:

1. Polygraph Tests:  The Employee Polygraph Protection Act of 1988 (“EPPA”) establishes four general prohibitions against the use of polygraph tests in the work place: (1) an employer may not directly or indirectly request or require or cause an employee or job applicant to take or submit to a lie detector test; (2) an employer may not use, accept, refer to or inquire into the results of an employee’s or applicant’s lie detector results; (3) an employer may not make an adverse employment decision against an employee or applicant who refuses or fails to take a lie detector test; and (4) an employer may not take make an adverse employment decision against an employee or applicant who wishes to file, testify or exercise his or her rights under the EPPA.

 

2. Drug and Alcohol Abuse Tests:  In general, a private-sector employer -- unlike public sector employers who are protected by the constitutional provisions against unreasonable search and seizure -- can conduct drug testing of its employee or applicants unless the employee or applicant is protected under statute or can prevail under a common law theory such as: invasion of privacy, defamation and/or the intentional infliction of emotional distress.

 

3. Skill Tests:  Skill tests are improper when it disparately impacts a protected class, e.g., age, race, sex, disability, national origin, religion etc.  An employer may demonstrate that its skills test is non-discriminatory if it can show that the test is directly related to necessary jobs skills.

 

4. Genetic Testing:  The Genetic Information Nondiscrimination Act of 2008 prohibits discrimination on the basis of genetic information.

 

5. Physical Examinations:  Federal and state courts have generally upheld the validity of physical examinations for applicants as long as the examination is sufficiently job related.  However, the Americans Disabilities Act, for example, prohibits medical examinations before an offer of employment but allows an employer to make an offer contingent upon the results of a medical examination. 

While this “tip” provides a basic outline of the permissible and impermissible pre-employment tests that an employer may use for job applicants, it does not cover all tests or the nuances of both federal and specific state laws.  I strongly recommend that employers seek advice from an employment lawyer or human resources professional prior to conducting pre-employment testing.  

Joseph A. Starr is a principal with Lipson, Neilson, Cole, Seltzer & Garin, P.C in Bloomfield Hills, Michigan.  His practice includes the defense of employers and insurance agents and brokers.