Some companies want to know an applicant's history of workers' comp claims in order to detect malingerers. And although workers' comp records are not public, there may be legal ways for a private investigator to obtain that information. However, under the Americans with Disabilities Act (ADA), you may not do a workers' comp check before offering someone a job.
As for credit and criminal checks, the government protects certain classes of citizens -- racial minorities and women, for instance -- against discrimination. Members of some protected classes are more likely to have bad credit or to have been convicted of a crime. If you consistently base hiring decisions on those criteria, you open yourself up to discrimination lawsuits. You would have to demonstrate that the information was related to the job, and in many cases that would be hard to prove. If you're hiring a driver, a drunken-driving arrest is relevant; if you're hiring a security guard, criminal history is relevant; if you're hiring a telemarketer, neither is.
Look into state laws, too, before conducting such checks. Many states don't allow you to check records of arrests, but most -- not all -- allow you to check convictions. Some states require you to get the applicant's approval before running checks, and some protect certain information. Speak to a labor lawyer before you do anything. And if you hire an outside firm to do your digging, demand a degree of legal savvy from it. Many display a cavalier attitude that could land you in court.
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Drug Tests
Preplacement tests are administered after a company makes a job offer contingent upon a clean result. That may be the safest time, legally, to test for drugs, but some employers wonder if it's the least effective, since many applicants now expect a test.
Voca, for one, prefers to give preplacement drug tests. Its care givers must respond quickly in an emergency, so the company has good reason for ensuring they're clean. (After seven years of testing, it consistently finds that 4% of applicants test positive.)
Voca explains up front to all applicants that any job offer is conditional upon a clean drug test, and applicants sign a form indicating they've read and understood the policy. The company offers any applicant who tests positive an opportunity to retest at the company's expense. And Voca is consistent in its testing: it tests all candidates for care-giver positions. For accurate readings and to further protect itself, the company sends its tests to a certified laboratory. While that is more pricey, certification will help you if anyone challenges a test result in court.
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Medical Exams
The ADA, which applies to companies with 25 or more employees (and beginning in July 1994, those with 15 or more), prohibits any pre-job-offer questions about medical conditions. You may ask only whether the applicant can perform the functions of the job. The Equal Employment Opportunity Commission has permitted certain agility tests, such as those used by police and fire departments, but the line between those and medical exams remains unclear. Would it be legal to ask applicants to read an eye chart? To perform a strength test? We won't know for certain until the ADA shakes out.
After you make an offer, you can, under federal law, require a complete head-to-toe physical and access to all medical records. However, you cannot legally use any information that is not job related, says Mark Rothstein, director of the Health Law and Policy Institute at the University of Houston. Eleven states explicitly limit exams to job-related information.
If you do test for job-related fitness, don't set blanket policies -- for instance, that anyone with a back problem is unfit. Rather, check that each person can lift the weight the job requires. Try to make that distinction, too, when you talk about the applicant. Inform managers only of ability, not of condition. "You can say, Joe Smith has a 25-pound lifting limit," Rothstein explains, "not, Joe Smith has a 25-pound lifting limit because he's got a slipped disk." Otherwise, overcautious managers might restrict Joe from jobs he's capable of performing and thus leave themselves open to a lawsuit. For the same reason, keep medical records confidential and separate from ordinary personnel files.
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Psychological Exams
Employers have used psychological tests since the 1950s. The oldest of those tests, developed for clinics and adapted for employers, screen for emotional disorders. Some tests contain prying questions about religious beliefs and sexual habits. In California (a state with unusually broad privacy rights), a job applicant sued a company after being given such a test. (He won, but the case is under appeal.) Such tests for emotional disorders should be used only for security positions -- so you don't give a gun to someone dangerous, for example.
The psychological-testing industry blossomed after 1988, when the federal government banned the use of lie-detector tests in most employment situations. Publishers filled that void with integrity tests. The simplest "core" integrity tests look at security issues only -- theft, drug abuse, and violence -- and cost as little as $8 to $16 a test, depending on volume. Others may test for security plus productivity or customer-service attitudes. Some even claim to measure the likelihood that a new hire will have accidents on the job or will quit.
Those tests try to predict job applicants' propensity to steal, for instance, by matching their test results with those of known thieves, asking obvious questions, such as, How often do you tell the truth? and less obvious ones, such as, How often do you make your bed?
Do those tests work? In a way. Just because one person's responses match those given by thieves does not mean that person will steal; rather, it means he or she is more likely to steal. You play the odds and, in the long run, may improve your chances of reducing theft.
Some integrity-test publishers scare employers with estimates of thefts by as many as 30% of all employees. But they may be counting people who take home pens or make personal calls from the office. Other experts say the rate of serious theft is as low as 5%. Whatever the situation in your company, be warned: even the best integrity test will produce many false positives -- people unjustly suspected and rejected.
Beyond integrity tests, publishers have developed all sorts of "personality-assessment tools" to predict how an applicant will do the job and fit into your organization. Those tests may judge a prospective salesperson's aggressiveness, for instance, or an accountant's attention to detail.
