Chapter 6 Employment Testing

1. Chapter 6 Employment Testing

2. Forms of Testing Polygraphs: Federal Employee Polygraph Protection Act of 1988 severely restricts use of polygraph in employment decisions by most employers Integrity & personality tests: Integrity tests measure a wide variety of constructs Validity may be questionable but tests do not appear to adversely impact any protected groups Personality tests appear to be non-discriminatory Need to measure job-related personality dimensions Tests should have face validity Physical ability: Should measure only essential functions Intelligence: Highly criticized as basis for disparate impact discrimination Drug & alcohol: Covered under the Drug-Free Workplace Act of 1988

3. Forms of Testing Medical testing: Permitted prior to employment but after an offer has been made Must apply to all employees in the same job category Genetic Testing: Evaluates an individual�s biological predisposition to certain diseases May encourage discrimination based on fears and myths HIV/Aids Testing: Inappropriate Does not serve a legitimate business purpose Does not indicate HIV status as of the day of the examination Many arguments for and against HIV/AIDS testing for health care workers

4. Legality of Testing Business necessity Provide job analysis data to support Job related EEOC provides Uniform Guidelines on Employee Selection Process

5. Legality of Testingfor Ineligibility Tests for ineligibility may be limited by state statutes or local ordinances Employers may be liable for certain tort claims because of ineligibility testing Invasion of privacy Reckless or negligent infliction of emotional distress Defamation Wrongful discharge

6. Drug Tests 1 Drug testing in employment is used: Prior to hiring; As part of periodic medical exams; To verify that employees who have been through drug rehab programs are �clean�; Upon observation of aberrant behavior that create reasonable suspicion of drug use; And randomly.

7. Lanier v. City of Woodburn Facts: Plaintiff applied for a job as a part-time page at Woodburn�s library, and was conditionally hired, subject to a background check, medical exam and drug screening. She refused the drug test. The offer was withdrawn and she sued under the U.S. (4th Amendment) and Oregon Constitutions. Issue: Whether the City�s policy requiring suspicionless, warrantless, pre-employment drug tests (searches) of candidates of choice for city jobs was constitutional as applied. Held: No. This was not a safety-related job, and the City did not demonstrate a special need to screen a prospective page for drug use.

8. Just the Facts City�s drug testing policy called for �random, unannounced drug testing of employees in safety-sensitive positions.� The City drug-tested all streets and sanitation department employees on a certain day, but one driver/laborer refused. Because he did not have a Commercial Driver�s License (CDL) and did not operate the largest pieces of heavy equipment, he was not subject to federal drug testing requirements for transportation workers. However, he did operate one-ton dump trucks, and dump trucks with plows, as part of his job. He had no accidents on the job and there was no history of drug-related accidents among city workers. In a City test two years earlier, the employee tested positive for marijuana use. The employee was terminated for refusing the drug test and sued. Were the employee�s constitutional rights violated? Krieg v. Seybold, 481 F.3d 512 (7th Cir. 2007)

9. Drug Testing 2 There is no one rule that applies to whether an employer may use drug testing and under what circumstances. Drug testing laws vary from state to state. 10 states ban it or limit it to certain safety-related industries. Random drug testing of union members is a topic of mandatory bargaining, and depends on the Collective Bargaining Agreement (CBA).

10. Drug Testing 3 Random drug testing by public employers is prohibited by the 4th Amendment to the U.S. Constitution and some state constitutions. But public employers may drug test for safety-sensitive jobs or upon reasonable suspicion. Drug and alcohol testing of employees in transportation-related jobs is required.

11. Government Employees Federal, state and local employees are protected from government intrusion Constitutional protection The Fourth Amendment protects against unreasonable search and seizure Collection of personal information has been considered a search Detaining an employee may lead to charges of false imprisonment The Court has not addressed the right to be free from mandatory pre-employment medical tests

12. Drug Testing Procedures 1 The most common procedures required by state statutes are that employees must: Be given written notice that drug testing is required Be given copies of the employer�s substance abuse and drug testing policy Be given test results in writing Be given an opportunity to explain the result if the test is positive

13. Drug Testing Procedures 2 Employers must: Use licensed laboratories to analyze samples Perform confirmatory tests, if requested, or allow employees samples for their own tests Collect samples with due regard for employees� privacy Keep results of drug tests confidential