For employers, the latest statewide test scores for high school students in our area are not very encouraging. In fact, an employer of high school graduates might think that this would be a good time to give job applicants an examination to ensure that they have sufficient skills to do the job.
That sounds like a good idea, and it might be, but managers should be aware that applicant testing is an area of numerous risks to the unwary. Before you bring in any testing experts, buy a test, or draft your own exam then, you can save yourself a lot of grief by understanding the legal minefield you will be entering.
Bruce Cross, a partner in the Perkins Coie law firm’s Labor and Employment Law practice, says that “the two major legal influences on applicant testing are the anti-discrimination laws and the Americans with Disabilities Act.”
He adds, “the most commonly encountered types of applicant tests are psychological, physical and academic, and each brings its own legal hazards that you should avoid.”
Psychological tests usually are used to test characteristics such as honesty, trustworthiness, attention span, attitudes, and other variables that might affect job performance. A legal issue with these tests can arise if the test is considered a medical examination, which can, of course, be administered only by a licensed physician.
Another potential issue with employer-administered psychological testing is that the amount of their practical, usable information can be low and expensive. More reliable information about character can often be obtained through better screening, interviewing and reference checking.
Certainly not least in importance is that psychological test results are really the nitroglycerin of personnel records. They contain very sensitive information and represent a real liability in terms of leaks or accidental electronic distribution. Unless you and your staff have some training and experience with handling and storing this type of information, you should consider if it is worth it to your business to create it the first place.
Physical tests also can contain legal traps for the unwary business manager. Usually they arise when your test either strays from the actual job requirements or collides with the Americans with Disabilities Act (ADA).
Under the ADA, employers are required to provide reasonable accommodations to an applicant or employee’s disabilities. In some cases that might mean rearranging or restructuring a job in some way or, for example, adding equipment to assist in lifting products or materials.
If you are hiring high school graduates, academic exams generally test the applicant’s competence in basic skills like reading, writing and arithmetic. The caution here is to make sure that the skills are job-related. While algebra is required at most high schools, unless the job requires solving quadratic equations a test that includes this type of algebra problem might get you into a conflict with workplace anti-discrimination laws.
The proliferation of risks and potential legal problems is not a sufficient reason to abandon the idea of applicant testing, but a smart manager won’t enter those thickets without a reliable guide. And one thing is certain; the time to bring in the guide is before you start out. After that, there is less guiding and more damage control.
Fortunately, whatever you decide about testing, there are also some things that you can do that can bring you more qualified applicants.
You can start by thinking of your workplace in marketing terms.
If it is high school graduates you want, get to know all the high schools in your area. If your school district permits it, prepare “What we do” presentations for the juniors and seniors so that they know your business exists. If you are not getting good candidates, go out and recruit good candidates.
In particular, you should get to know the guidance counselors at these schools. They are influential people and while a lot of their time is focused on college applications these days, they may know just the right graduate or soon-to-be graduate for your open position. And don’t forget to invite the counselor over for a look at your workplace. That builds confidence and interest in your business.
There is also nothing in the law that prevents you from starting a training program for employees who need brushing up on their math or English skills. A substantial number of high school students retain very little of what they have learned, especially in these fundamentals. Perhaps surprisingly, many of these same graduates would welcome a chance to raise their skills levels — especially if they see that as a path to success in business.
Taking positive actions always beats whining about the difficulties. Getting good people for your business will be worth every bit of effort you put into it…and more.
James McCusker is a Bothell economist, educator and consultant. He writes a column for the monthly Herald Business Journal.
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