Who the Devil's Applying Now
Your Guide to Employment Testing
Employment testing is an important method used to predicate a candidates future performance. Crimcheck.com offers employment and integrity testing services.
While every company should avoid hiring employees who might pose security risks, the hiring criteria will differ depending on the
nature of the position and of the business. For example, high-risk, safety-sensitive positions require a higher level of screening
than less sensitive positions. A background check is a good first step for companies seeking to screen out undesirable workers. Not
all future troublemakers will have a history of problems, however. Thus, companies need additional tools for assessing a candidate’s
future behavior. For example, integrity tests can be used to assess a candidate’s trustworthiness and dependability. Clinical
personality tests, a type of psychological test, can be used to assess emotional stability. Before using such tests, employers should
understand the legal issues, such as privacy and discrimination, that can arise. These issues are similar to those created by the use
of other screening tools, including interviews, applications, and background checks.
Psychological Assessments
Psychologists have studied a wide variety of workplace deviance such as theft, violence, and illicit drug abuse. From these studies, psychologists have developed psychological assessments that can be used to help measure a job candidate’s risk levels for engaging in undesirable activities at work. Based on scientific research, these behavioral scientists have been able to help identify job-related psychological traits that differentiate high-risk job candidates from low-risk candidates.
The two major categories of assessments currently used to screen for security issues are integrity tests and clinical personality tests. Integrity tests can be used to weed out applicants likely to engage in deviant behavior such as theft, drug use, or workplace violence. Clinical personality tests are used to spot serious emotional problems in candidates.
Integrity Tests
Integrity tests are designed to help identify job applicants who are likely to engage in employee theft and other undesirable behavior such as on-the-job violence, illicit drug abuse, and disciplinary problems. This class of personnel tests also helps predict conscientiousness and dependability in the workplace—traits that are job-related for many positions.
One major North American specialty retailer that the authors’ company works with began using one integrity test in approximately 600 of its 1,900 locations to reduce turnover and shrinkage. One year after implementing the assessment, the company compared its nontesting stores to those stores using testing. This investigation revealed that those company sites using testing saw a more than 35 percent drop in the rate of inventory shrink, while stores not using testing saw inventory shrink go up more than 10 percent.
Additionally, stores using integrity testing observed a 13 percent improvement in turnover, while stores not using this assessment saw turnover increase by 14 percent. While this retailer’s goal was reducing shrinkage, it recognized that reductions in turnover also saved the company money, since hiring, training, and administrative costs for each new employee totaled approximately $1,500.
Integrity Test Formats
Integrity tests can be administered in a variety of formats including paper and pencil, computer survey, in-store kiosk, telephonic interactive voice response, and as an interactive Web page. The results are then scored by a company specializing in the tests.
Integrity Test Customization
The tests can be customized to meet the needs of the employer because specific attributes are assessed with designated groups of questions. This means that one company can test for honesty and nonviolence by administering those sets of questions, while another might test for drug avoidance and turnover. Other traits that can be evaluated include safety consciousness, work values, customer service, responsiveness to supervision, and overall employability.
Integrity Test Past Activity
The tests are not intended to replace a thorough background check, but it is interesting to note how the findings of the tests—which attempt to predict future behavior—correlate to a person’s past activities. For example, at one national trucking company that was a client of the authors’ company, a two-prong test was used. A group of 940 applicants was tested. The tests were designed to determine honesty, work values, and illegal drug use. Using the tests, the company screened out 16 percent of applicants who did not meet standards on the honesty portion of the test. The company then conducted a background check on these same applicants. More than 14 percent of those who applicants who scored poorly on the integrity test also had a criminal background.(Editor’s note: Preemployment screening firm HireCheck, Inc., says it has found on average that 10 percent of candidates screened have a criminal history)
Integrity Test Timing
Because of the nature of integrity tests, it is legal to give them to prospective employees before a job is offered, and that’s what employers generally do (more on legal issues later). Some companies screen all prospective applicants with integrity tests; others only screen finalists. Depending on how many traits are assessed, individual tests cost from $8 to $14 each.
Integrity Test Passing Standards
Research done on integrity tests given to workers in the transportation, hospitality, healthcare, and retail industries indicates that approximately 70 percent of applicants meet minimal passing standards, while 30 percent score below standard. Thus, when positioned as the initial step of the hiring process, the tests help weed out the bottom third of the applicant pool. Companies can also decide to set specific standards based on their own needs.
Personality Tests
Clinical personality tests are used to help determine whether a job candidate has personality problems or serious emotional disturbances that may adversely affect his or her performance in a position. Positions for which clinical personality testing is recommended typically involve high degrees of stress, personal risk, and responsibility. Examples of such positions include flight crew, federal air marshals, air traffic controllers, armed security guards, special agents, police officers, fire fighters, military personnel and nuclear power plant operators. The use of clinical personality assessments in these high-risk positions is often mandated by law—in the nuclear power industry, for example.
Administering the Personality Test
There are a number of topics, or scales, in clinical personality tests. Each scale addresses a different topic, such as serious depression or lack of a conscience. Because of the nature of these tests, the questions on clinical personality tests are more invasive than those asked in integrity tests, and they must be administered only after a job offer is made and be interpreted only by a properly trained individual such as a clinical psychologist, psychiatrist, or clinically trained social worker.
The tests are paper and pencil test and are interpreted by the psychologist or other qualified professional. Follow-up interviews with the psychologist can be conducted to get additional information from the applicant if necessary. The cost of the tests varies depending on the fee of the psychologist. Some companies hire a psychologist from the testing company while others have trained personnel on staff.
Certain clinical personality tests, the Minnestoa Multiphasic Personality Inventory (MMPI) for example, have been validated by decades of testing in the mental health field. Such tests are considered scientifically sound and are used to diagnose personality disorders and mental disturbance. The results of such tests can be used as evidence in court proceedings.
Among the many legal issues that must be considered in the testing of prospective employees, probably the most significant arise from Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and various privacy provisions.
In Regards to Civil Rights and Employment Testing
According to the Civil Rights Act, it is unlawful for employers to use any preemployment tool that has a substantially negative impact on a protected subgroup—for example a particular race or gender—unless the tool can be shown to be job-related and consistent with business necessity. Thus, from the perspective of the Civil Rights Act, any can be used to hire employees if it does not exhibit a disparate impact, while those tools that have adverse impact must be justified by validity evidence.
Clinical personality and integrity tests have consistently been shown not to have an adverse impact on a particular group. Accompanying the favorable research findings in this area, personality and integrity tests have an excellent record when they have been subjected to civil rights claims. For instance, over the last 30 years, there have been 23 reported legal challenges to The Reid Report, an integrity test administered by the authors’ clients. In each of these instances, the Equal Employment Opportunity Commission (EEOC) or the relevant state human rights agency determined that there was no probable cause to believe that the instrument had a disparate impact on job applicants.
ADA. From an ADA perspective, the most common issue raised is whether testing constitutes a medical examination. The importance of such a distinction stems from the fact that medical examinations can only be conducted after a conditional offer of employment has been tendered.
According to guidance issued by the EEOC, psychological examinations will be considered medical examinations if they provide evidence concerning whether an applicant has a mental disorder or impairment. The EEOC has also issued guidance that a test designed and used to measure only such factors as an applicant’s honesty, tastes, and habits would not normally be considered a medical examination.
Most clinical personality instruments have been developed to help evaluate emotional stability and diagnose various psychological impairments. Thus, it is generally recognized that clinical personality tests are medical examinations and can only be administered after a conditional job offer has been tendered.
In contrast, integrity tests focus on predicting a constellation of work-related behaviors, not mental disabilities and disorders. Thus, integrity tests are not considered medical exams, and they can generally be administered at any time during the hiring process.
State laws. While most state and federal laws apply equally to all human resources tools, some state laws address specific tools. For example, the polygraph statutes of Massachusetts and Rhode Island apply to an employer’s use of written integrity tests and polygraphs. In Massachusetts, it is unlawful for employers to use an integrity test, while in Rhode Island such a test cannot be used to form the primary basis of an employment decision. These statutes were enacted in the late 1980s and no similar legislation has been enacted in other states.
In Regards to Privacy and Employment Testing
Probably the most consistently misunderstood issue with regard to preemployment testing is invasion of privacy. Many commentators characterize all testing as invasive, claiming that tests contain items about religious beliefs, personal troubles, and sexual practices. In reality, clinical personality tests are generally the only instruments that contain invasive inquiries. From a case law perspective, the vast majority of privacy litigation has focused on other invasive tests, such as preemployment drug testing programs. But clinical personality tests have also been challenged in court on privacy grounds.
The most frequently cited case (McKenna v. Fargo, U.S. Court of Appeals for the Second Circuit, 1979) on constitutional challenges to clinical testing involved the testing of high-risk government employees. In the case, a municipality was challenged for its use of the MMPI for screening firefighters. While the court recognized that the test was invasive, it held that the city’s hiring interests justified the use of the test programs. The U.S. Supreme Court has since upheld the use of invasive tests for screening safety-sensitive jobs in National Treasury Employees Union v. von Raab (United States Supreme Court, 1989). In the case, the Court ruled that invasive tests could be used in screening U.S. Customs employees applying for promotion to jobs that required them to carry firearms or be involved in the interdiction of illegal drugs.
More recently, a California court has addressed the use of the test in the private sector. In Soroka v. Dayton Hudson (California Court of Appeals, 1991), Target retail stores were using a combination of the MMPI, California Psychological Inventory, and an integrity test to screen unarmed security guards. Plaintiffs alleged that the two clinical tests, not the integrity test, unlawfully invaded their privacy.
While waiting a trial date, the plaintiff requested a preliminary injunction to halt Target’s use of the test during the trial. The trial court refused to grant the injunction, ruling that the use of the tests was justified by the employer’s reasonable interests. The plaintiff appealed the decision. The appeals court granted the injunction, holding that Target needed more than a reasonable interest to justify invading a job applicant’s privacy. Specifically, the court stated that under the California Constitution’s privacy provision, an employer must have a compelling interest to legally justify the use of invasive employment tools.
The court implied that jobs such as armed security guard, police officer, and nuclear plant employee would be positions where an employer would generally be able to show a compelling interest. Target appealed this decision to the California Supreme Court, but prior to the court’s review the parties settled the case.
In a subsequent case, (Loder v. City of Glendale, California Supreme Court, 1997) the California Supreme Court addressed similar issues. The court held that invasions of an applicant’s privacy need not always be justified by a compelling interest. In the case, the court ruled that the City of Glendale, California, could use invasive preemployment screening for job applicants, in part because the employer had little information on which to base a hiring decision. However, the court ruled that such tests could not be used to screen applicants for promotions because the city could rely on various performance-related factors in making the decision.
In another case (Staples v. Rent-A-Center, U.S. District Court for the Northern District of California, 2000), Rent-A-Center was sued for using two clinical instruments within an overall testing program to screen management candidates. The employer settled the suit for $2 million and agreed to discontinue using the clinical tests. In response to the case, some legal experts advise that a management position does not generally justify invading an applicant’s privacy.
When considering privacy, employers should remember that privacy protections are not the same for all employers. For instance, the privacy protections afforded by the U.S. Constitution generally do not apply to private employers. This is true of most state constitutional privacy provisions as well—California is an exception to this general rule. And, while most states recognize common law privacy protections, these vary across states and often afford lower degrees of protection than constitutional provisions.
Just as the courts will judge on a case-by-case basis whether tests with disparate impact can be used for employment purposes, they will weigh whether an invasive test is justified by appropriate business or societal interests in a given situation. As a general rule, invasive instruments such as drug tests and clinical personality tests are most likely to be justified when screening for safety-sensitive positions such as flight crews and armed security officers.
Employment Testing Has Been Found To Be Effective
Well-developed personality and integrity tests have been shown to be effective, objective, and fair in helping employers screen job applicants with a focus on security risks. However, it is imperative that employers use tests appropriately and in a manner that is consistent with legal standards.
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