Why Your DIY Pre-Employment Test May Not Be Legal

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Why Your DIY Pre-Employment Test May Not Be Legal

Every employer wants employees who have a positive attitude and will stay on the job so they often follow the hire-for-attitude, train-for-skills approach to staffing. To identify candidates with the right fit, many employers administer employment tests – including ones they’ve designed themselves. Unfortunately, the design-it-yourself path is laden with legal landmines.

One human resources manager recently shared this story with me:

For several months, I have been reviewing different pre-employment assessments to use in our organization. During this week’s managers meeting, one of the managers announced he was creating his own test and the rest of management bought into the idea. His arguments were convincing. First, he outlined how it would save money if they didn’t have to purchase a system. Second, he felt that he and the other managers knew what it took for an individual to succeed in their organization.

This situation prompted her to email me, “Is it legal for us to use a manager’s do-it-yourself pre-employment test?”

The short answer is yes. It’s perfectly legal…as long as it can be proven to be job-relevant and fair. That means a homegrown test must meet the same criteria as one developed by a test publisher or industrial psychologist. While it might be true that many small employers fall under the government’s radar when it comes to hiring practices, that doesn’t mean they are immune to the likes of Title VII of the Civil Rights Act of 1964 and the Uniform Guidelines on Employee Selection of 1978. These are the 800-pound gorillas guarding the rights of employees. They, along with several other laws, include pertinent guidelines and instruction on ways in which testing can be appropriately used to make hiring decisions and to prevent unjustified adverse impact.

Businesses run into trouble when their hiring, promotion, or other employment decisions substantially differ and disadvantage members of a certain race, sex or ethnic group. This means that if, whatever process or tools you use to assess employees must the following criteria:

  • The questions and recommendations must be relevant to the job.
  • They should not adversely impact a candidate based on race, sex or ethnicity.

Creating your own test to save money is enticing. But it’s like buying vitamins instead of buying health insurance because you are young. As long as you don’t get in trouble, you save a few bucks. But all it takes is to get challenged by one disgruntled employee and what you saved by doing it yourself is a drop in the bucket to the cost of defending it in court. Reputable publishers of pre-employment tests avoid questions that are not predictive, irrelevant or invasive.

As I learned nearly 25 years ago during my anesthesia rotation, it is easy for anyone to put another person to sleep. The real skill of an anesthesiologist is being able to wake the patient up after the surgery. When it comes to creating test, it is easy for a group of managers to come up with a list of questions to ask. The real skill is identifying which questions can actually predict job performance and asking them in a way that is legal and defensible. If you are using or considering developing your own test or procedure, expert help is advisable to make sure your procedure as well as the test is fair to all relevant groups.

The Department of Labor offers an excellent “Employer’s Guide to Good Practices” on testing and assessment.

(First published in The Total View Newsletter – June 16, 2010)

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