Hiring and the Law — Testing Just One or Two Staff?

Devora L. Lindeman, Esq., Partner at Greenwald Doherty LLP, is providing us with insight and information regarding the hiring process. Ms. Lindeman is a management-side employment lawyer and has exclusively represented managers and companies in federal and state agencies and courts with regard to their labor and employment needs for many years.

Questions addressed to Ms. Lindeman may be addressed in this column.

Hiring and the Law
By Devora L. Lindeman, Esq.*

Question:  Can an employer do personality or other similar testing on just 1 or 2 of his or her existing staff to find out about them without also testing the rest of the staff? Is this opening the door to potential legal action?

Answer:  The answer depends on why the employer wants to do the testing.  One of the main concerns with employee testing is to ensure that it is not done in a discriminatory manner.  If the employer appears to be singling out the women for testing, when not testing the men for example, or makes other divisions along lines that could be perceived as being discriminatory, the employer runs the risk of an employee claim that the action was, indeed, taken for discriminatory reasons. This is especially so if an employee suffers an adverse employment action as a result of the testing.

There may be times, however, where testing a few, but not all, of an employer’s current employees may be appropriate.  For example, if the employer is choosing between two candidates for a promotion it would be acceptable to test both of those candidates, but not test any of the other employees who are not promotion candidates.  This is a legitimate reason to test only those two employees and not the others.  The testing done may give the employer insight into which employee to promote.

Thus, whether it would be legally prudent to test just one or two employees depends on the reason the employer wants to “find out about them.”

As with all testing, however (including pre-employment testing) it is best not to use the test as a tie-breaker or definitive determining factor in making any employment decision.  Test results should be looked at as part of a package of information that an employer is considering.  While testing can provide good insights into candidates and employees, it is prudent to consider all the information to hand in these situations.  This is especially so where the testing results do not jive with what has been observed about the employee.  For example, if the test shows the person has a good communication level, but the person who interviewed clearly did not – don’t rely on the test alone.  Consider what you observed and remember that it is the person, themselves, who is answering the test questions and is answering as to how they perceive themselves.

If, on the other hand, an employer is considering doing testing because an employee is not performing well and the employer wants to “find out more about” the employee—that may not be an appropriate time for testing.  The test results won’t change the fact that the employee is performing poorly and may, more likely, lead to a legal claim by the employee that he or she was being singled out for some reason when being “subjected” to testing.

Accordingly, whether an employer can test some, but not all, employees really depends on the situation.

*Ms. Lindeman is a Partner at Greenwald Doherty LLP, a law firm that exclusively represents businesses in all aspects of labor and employment law.  These columns are intended to be general information regarding the topic discussed and are not to be considered legal advice regarding a specific situation. Contact a management-side employment attorney familiar with the law of your jurisdiction for specific advice.  Ms. Lindeman is admitted to practice law in NY and NJ and may be contacted at DL@greenwaldllp.com.  She is under no obligation to respond to reader inquiries personally, but may answer general employment law questions through this column.

© 2011 Greenwald Doherty.  May not be reprinted without permission.

As the law varies in each area, please check with an attorney to ensure you are applying these tips within the law.

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