Workplace Evaluations: Skills, Aptitude, Psychological and Lie Detector Tests

Ideally, every job applicant should be fully tested and evaluated before being hired for any position. However, state and federal laws impose certain restraints on the specific types of tests that can be given to job seekers. While skills tests are usually the most critical and widely accepted exams, care must be taken to administer them fairly and accurately.

Here’s a general overview of the types of job applicant rights you must respect while using any of the types of tests referenced above. As will be referenced below, all tests must be given in full compliance with the Americans with Disabilities Act (ADA).

Skills and aptitude tests – evaluating clerical, computer software and other job skills

A general rule of thumb that can guide you about many tests is that they must be specific to the types of skills that a job requires on a regular basis. Therefore, it’s usually fine to find out how fast a potential clerical employee can type or how much someone knows about repairing and maintaining computer systems if you’re hiring a computer help desk employee.

While you can usually test most the job skills of the disabled, you may need to make some accommodations in how you administer such tests. Cornell University’s publication entitled, Pre-Employment Testing and the ADAis well worth reviewing to gain a better understanding of job testing requirements. Just keep in mind that certain timed tests may need to provide slightly longer completion times and accommodations may need to be extended to applicants who’ve made their special testing needs known to you, in advance.

Although general aptitude tests can still be given using multiple choice tests, great care must be taken to avoid formats that may mainly reward test-taking skills over a job candidate’s ability to properly handle future job tasks. Short-answer questions based on factual job topics may provide greater insights into a person’s capabilities.

Psychological testing of job applicants

Although some employers still place great value on these types of tests, they are no longer highly favored. Two of the chief reasons that employers are thinking twice about administering these types of tests is that they can sometimes illegally discriminate against certain job applicants or invade their privacy regarding their moral and religious beliefs.

Employers should only administer psychological profile tests that have been scientifically validated, indicating direct correlations with a worker’s job performance. Another potential problem with psychological testing is that the ADA does not allow medically oriented tests to be administered to applicants who are disabled — if it might help discern their disabilities.

In certain situations, the ADA may also require you to revise a psychological or other test if an applicant claims it tests skills related to his/her disability (such as hearing capacity) – that are not regularly required for the job.

Lie detector or “honesty” tests for job applicants and employees

In general, the federal Employee Polygraph Protection Act – with only limited exceptions – prevents employers from requiring job applicants or employees to undergo lie detector tests. While certain types of unique applicants or employees may have to take such tests – including those wanting to provide armored security services (or dispense pharmaceuticals) – restrictions must still be honored as to how such tests are administered and evaluated.

Most of the time, in the few instances when a larger employer might want to administer this type of test, it’s normally only used when there’s reasonable suspicion that an employee may have embezzled from the company or committed other workplace theft.

At present, experts on this topic indicate that it’s nearly always best to restrict the use of any type of “honesty” test to situations where an employee may need to handle cash.

Always remember that in order to protect your company or business from any possible future claims of discrimination, you must make sure that all job applicants take the required tests at the same basic time in the hiring process.

Every employer may want to create a copy of this EEOC document designed to help determine the best job candidates — while fully complying with all federal laws.

Please feel free to contact one of our Murray Lobb lawyers if you need legal advice about administering specific tests to any of your job applicants or employees. We also remain available to discuss any other legal concerns you may have – and can readily draft a wide range of contracts and other documents you may need while conducting daily transactions with your business customers and other parties.

Crafting Effective Job Descriptions and Ads

Creating the type of job ads that attract large pools of highly qualified candidates takes careful thought and planning, like every other important business task. Besides providing an accurate job title and listing the main duties of a position, you need to let job applicants know if a specific job will fit in with their current lifestyle and priorities.

Of course, you must also describe the minimum job qualifications and what you require in the way of prior experience and training. And all of this must be done in a manner that carefully avoids discriminating against anyone.

While drafting a proper job description may sound a bit intimidating, it can be done with relative ease if you’ll start by making a list of the key facts you need to communicate – while still making the job sound highly desirable. The job ad itself should be considerably shorter, in keeping with the online or print forum where you’ll be placing it.

Here’s a closer look at some of the broad topics and details you should always try to include.

After picking an appropriate job title — add a clear list of essential job duties

Since all jobs tend to change a bit over time, it’s a good idea to visit briefly with the person who recently supervised the worker in the vacant position. This will let you know if your old job description needs to be updated or expanded. Next, make a list of the most common tasks the person hired will need to handle on a regular basis. Always start by listing the most time-consuming job assignments.

Also, be sure to indicate if the open job is an entry-level, mid-level or senior-level job. And you’ll need to note whether the position involves training or supervising other employees —

and what percentage of the employee’s time may be devoted to such tasks.

What type of academic background – and prior job experience – are you seeking?

To avoid potentially discriminatory language, it’s wise to indicate that you’re looking for someone with either a college degree “or equivalent experience.” Be sure to also specifically list any professional licenses or certificates that the person must have already earned. Likewise, you should clearly state whether it’s a job that may frequently require over-time, weekend shifts or travel.

When you fail to mention such factors, you’ll likely end up interviewing people who would never have applied had you provided that crucial information.

Make one list of all the required skills – and a separate list of all desired skills

If the work requires clerical skills, you might indicate a minimum typing speed and then list the specific types of software program skills required. If you need someone who is bilingual, make it very clear if you’ll expect complete fluency.

Should you believe the job requires the ability to work well under pressure while meeting strict deadlines, it’s always wise to include that information, too.

Provide a brief description of the job culture, if possible

If your company is in start-up mode, be sure to share that since there are people who know that they usually do their best work in more stable or established work environments. Likewise, if you’ll be expecting this person to always work in-house – or remotely on one or more days – try to indicate that as well since some workers either strongly prefer that lifestyle or know that they do their best work in an office setting where they can readily consult with others on a regular basis.

Consider indicating the desired new hire’s personality type and work traits

If the person you want to hire needs highly developed interpersonal skills – perhaps because it’s a receptionist or job training position — you may want to mention that as a desirable strength. Likewise, if the new employee will be conducting considerable research for your firm, it’s fine to say that you’re looking for someone with strong analytical skills and keen attention to detail.

Unique job demands or requirements

In order to avoid creating problems for yourself with the Americans with Disabilities Act and other legislation designed to protect specific job applicant and employee rights, it’s best to note unique requirements in your job ad so applicants will clearly know what’s required in advance.

Here are some job demands that should always be noted in your full job description provided to all selected applicants prior to job interviews.

  • Night shifts. Let applicants know if the new person may have to regularly tackle night shifts, in keeping with your company’s changing needs;
  • Ability to lift and/or carry small or large objects of a certain weight. People deserve to know in advance if they’ll need to lift heavy boxes or other objects on a regular basis. When possible, try to provide an accurate range of weights involved;
  • Use of personal vehicle. Be sure to note this and indicate that any job offer will be conditional, based on an applicant providing a recent copy of an acceptable driving record;
  • On-call work shifts. If this employee must be available on an on-call basis during certain days or weeks – on a regular schedule — be sure to note this since it lets those with unique family obligations (or physical limitations) know whether the job is still a desirable one for them.

If your company does federal contracting work – keep EEOC requirements in mind

When a business does this type of work, it must always note in any job ad that all applicants will receive full consideration, regardless of their color, race, sex, national origin or religion. Many companies simply note this at the end of their ads by indicating that they’re an EEO (Equal Employment Opportunity) Employer. 

Even some companies who aren’t required to include an EEOC statement include one so that their applicants will be fully aware that they’re encountered an employer dedicated to fair hiring from a fully diverse group of applicants.

Additional comments about legally risky, outdated jargon & online “keywords”

Remember to use gender-neutral labels like “salesperson” as opposed to salesman and “server” in place of waiter. Likewise, “general repair person” is better than “handyman.” It’s also preferable to indicate you’re seeking to fill a “part-time position” than to indicate that you’re looking for a college student.

Finally, give thought to obtaining direct advice – or even job-writing templates – from one of the major online job boards like Monster.com, Indeed.com or Careerbuilder.com. They can also help you with selecting the most useful “keywords” that you’ll want to include in your ad.

Please feel free to contact one of our Murray Lobb attorneys whenever you need any advice about how to properly attract and interact with job applicants – or if you need help with any employee management issues that may arise. Our firm can also supply you with any employee contracts and other general business documents.

Determining Fault After an Employee’s Accident in a Company Car

One of the most awkward moments for any worker is getting into a vehicle accident while driving a company car. Since every employee wants to be viewed as highly responsible, this type of event requires sincere humility while explaining the circumstances of the accident.

If the employee was clearly at fault and using the company car for personal reasons at the time the collision occurred – liability issues can quickly multiply – especially if a third party was injured.

Before noting some of the key factors that must be evaluated when this type of event occurs, here’s a quick review of some insurance policy definitions.

Insurance policies that may be involved when an employee has a vehicle accident

  • Commercial auto policy. The coverage or protection this type of policy offers to a company can be crucial following an accident. It’s designed to protect the business from having to cover all the personal injury expenses and property damage. Brokers often speak of this as a business auto or commercial auto policy;
  • A general liability policy. Most employers carry one of these because it offers protection against all kinds of third-party legal claims, including those that might be filed after a third party falls down and is injured on company property – or hurt during an auto accident caused by an employee driving a company car;
  • Worker’s compensation insurance. All employers of a certain size should carry this type of insurance that normally provides benefits to workers injured on the job – including those who were handling official business in a company car when a vehicle accident occurred;
  • A policy rider. An amendment to an insurance policy. Some employees who choose to use their personal cars for business add a special rider to their personal auto insurance policies to provide coverage if they get into an accident while handling company business. Depending on the employee’s relationship with the company, some employers will reimburse the employee for the added expense this type of rider adds to the employee’s basic auto insurance policy.

Once liability for the accident is determined, one or more of the policies referenced above will have to be used to cover all the injury expenses and property damage repairs.

The legal doctrine of respondeat superior and employer liability

When an employee is driving a company car at the time of an accident (while actively handling assigned business tasks) – that s/he did not personally cause – the employer will normally be responsible for paying for all the damages.  However, since various jurisdictions apply aspects of the respondeat superior doctrine differently, it’s important to check with your Houston business lawyer to find out exactly how this doctrine is applied in Texas.

Stated in general terms, respondeat superior usually indicates that the principal (employer) is normally responsible for most activities handled by the employee (agent).

One or more of the employer’s insurance policies (in addition to worker’s compensation), will normally cover medical expenses and the costs incurred due to property damage. However, insurance companies often quarrel over whether the employee was clearly handling business tasks at the time of the accident — and if s/he had current authorization to use the company vehicle.

Liability can shift when an employee was totally or partially responsible for the accident

The circumstances surrounding each accident will normally determine the exact percentage of damages that an employee must pay under his/her own policy. Whether any type of indemnity is offered to the employee usually depends on whether the third party involved caused the accident.

In most cases, an employee who caused a collision will be held fully responsible for all damages under his/her own personal auto accident policy.

However, when a third party caused the accident, there are still specific circumstances that will allow an employer to deny all liability. Several of these exceptions are set forth below.

  • The “frolic or detour” exception. If the employee was running a personal errand at the time the accident in the company car occurred, she must normally cover all the damages under her own personal auto accident policy;
  • The employee was under the influence of alcohol or drugs at the time of the accident. Once this has been conclusively established, the employer may be able to deny all liability;
  • The accident did not take place during normal business hours. However, there can be exceptions – like when a salesperson is traveling to his/her next sales destination on behalf of the company;
  • The employee was an independent contractor using his/her own vehicle. Potential liability for all types of vehicle accidents should be clearly spelled out in each employee’s company paperwork – before that individual can handle company business in any vehicle.

It’s always wise for an employee who was just in a company vehicle accident to request a timely meeting with company officials as soon as that person’s health allows. Everyone may benefit if a

compromise regarding liability can be reached – unless the employee’s behavior was clearly unacceptable.

If you have any questions about how your business or insurance provider should handle a specific type of accident involving a company car, please feel free to call one of our Murray Lobb attorneys. We can provide you with our legal opinion and possibly suggest legal paperwork you might want to have every employee sign before ever issuing any of them a company car for their use.