Psychological Test for Job Hunters Can Be Challenged

Question: My son applied to work at a national retail store chain and was given a questionnaire that included this question: “Does it outrage you when criminals get off due to technicalities?” There were other, more straightforward, questions, but what are they really getting at here with that question? Also, the company would not let an applicant take the questionnaire out of the store. Can they do that?

--P.N., Brea

Answer: Some employers use various forms of psychological testing to screen employment applicants. These tests attempt to identify particular personality traits or characteristics that may impact job performance. The questions to which you refer may be part of such a test.

While these tests are frequently used by employers, they can be subject to attack if they have the effect of screening out job candidates based on their race, religion, sex, disability or other protected status. Also, if overly intrusive questions are asked, such tests may be challenged as violative of the applicant’s right to privacy.

For these reasons, employers using such tests should be able to show, if challenged, that: 1) the personality trait they seek to measure is an important trait for the specific job, 2) the test being used accurately measures the existence of that trait, and 3) the employer’s interest in obtaining the information outweighs the applicant’s privacy interest. In fact, before relying on any such test, an employer would be well-advised to consult with both legal counsel and an industrial psychologist.

As to your second question, assuming that an applicant signed and submitted the questionnaire, it would seem that the applicant would be entitled, under Section 422 of the Labor Code, to be given a copy. Section 432 states that if an applicant signs any “instrument” relating to obtaining employment, “he shall be given a copy of the instrument upon request.”

However, because such tests are often costly to develop and rather useless if widely circulated, the employer may argue that the testing instrument constitutes a trade secret, and that it may protect it from disclosure.

--Josephine Staton Tucker, employment law attorney, Morrison & Foerster

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Question: I have recently taken over the coordination of enrolling new employees in our group health insurance. New employees are directed to fill out an enrollment form and to submit it directly to our agent. Such forms contain detailed medical conditions of the subscribers and their dependents.

The practice in this office has been that copies of the enrollment forms were forwarded to our office, for “our information.” I have discontinued this practice, because I personally object to any employer having knowledge of an employee’s medical condition. I wonder, however, whether there are any guidelines that allow or bar an employer access to medical information of the employees.

--G.H., Irvine

Answer: There is no legal prohibition to an employer’s obtaining medical information for insurance purposes from its employees. However, federal and state privacy laws impose rather exacting restrictions on the use and disclosure of such information.

For example, under state law, employers may not use AIDS test results to make employment decisions. As a result, your concern for the employees’ privacy may actually benefit your company. Because you are careful not to collect private medical information, no one could convincingly charge the company with having misused or disclosed such information.

--Calvin House, attorney, Fulbright & Jaworski L.L.P., adjunct professor, Western State University College of Law

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Question: On the majority of today’s employment applications there is an at-will clause regarding termination, which all employees must sign before being hired. What can an individual do in order to have this labor clause, which I think is unfair, removed?

--R.F. Santa Ana

Answer: The doctrine that employees can be terminated “at will”--with or without a reason--has existed for more than 100 years. Montana is the only state that has a “just cause” termination statute. In all other states, the policy has been followed by the courts. In addition, California and Georgia have statutes permitting such terminations.

There are many things that can be done to contest such a policy: write your state legislator to continue attempts to abolish the law; seek employment in a state where the doctrine does not exist or where it is not as well established as in California. If you have sufficient bargaining power as an employee, insist that the employer delete it from your employment agreement. Document and confirm in writing any promises by your employer of continued employment or progressive discipline, which might be enough to nullify any other self-serving, at-will clause.

The most important thing to realize is that even if you think you are an at-will employee, it does not necessarily mean you can be fired for any reason. Most states have exceptions to such a rule, such as employment actions involving discrimination, retaliation against whistle-blowers or an implied contract based on other factors that require having good cause for termination.

If you have an employment problem, government agencies will help you with discrimination (such as the state Department of Fair Employment and Housing or the federal Equal Employment Opportunity Commission), wage claims or retaliation (State Labor Commissioner or federal Department of Labor), but not with breach of contract or at-will disputes. An employment adviser, such as a personnel recruiter you hire, or an attorney may be helpful in negotiating a good employment contract before you are hired or in pursing your rights later if they have been violated.

--Don D. Sessions, employee rights attorney, Mission Viejo

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Question: In my business, we are given monthly product knowledge tests. Can these types of exams actually predict how knowledgeable an employee is?

Answer: Product knowledge tests are one way that companies can measure whether their employees are keeping informed. Just like any test, a product knowledge test should be carefully constructed and evaluated to ensure its validity.

Rather than viewing the monthly testing program in a negative light (i.e., the company is “checking up” on its employees), consider the positive aspects of the testing--the company is concerned that employees are knowledgeable about the products they sell or represent. It may also indicate that the company is very oriented toward customer service.

Ron Riggio, professor of industrial psychology, Cal State Fullerton

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Question: In our employee handbook, it says we don’t have any sick days. All an employee can do is take a medical leave. If you take a maternity leave, the employee must pay the insurance, but if the medical leave is for a serious illness, the company will pay the insurance. Is this a correct policy?

--L.F., Tustin

Answer: It is difficult to answer your question without more information. There is no requirement mandating private employers to offer employee sick days, indemnity health insurance or even grant paid leave of absences.

There are numerous state and federal regulations that do require unpaid leave of absences be granted. Many small employers are not subject to all these obligations, however.

There is a California Pregnancy Disability Leave regulation, which requires employers with five or more employees to grant up to four months leave to employees based on pregnancy disability or medical conditions related to the pregnancy.

Maternity leave usually is defined as “mothering” and leave time is requested for the care of a newborn child, not for a disability situation. If your company is smaller than 50 employees and maternity leave is for personal care of the newborn, the company policy is correct to treat personal leaves separately from a medical disability leave.

If, however, a pregnancy disability is involved and the company policy treats such a disability differently than leave for another type of medical disability and the company has 15 or more employees, then the policy is incorrect.

The federal Pregnancy Discrimination Act requires employers with 15 or more employees to treat pregnancy disability leaves in the same manner as any other medical disability leave. Consequently, both would be required to have the same insurance benefit pay provided by the company.

To further complicate the issue--if your company has more than 50 employees there would be additional obligations to comply with both California and federal family leave regulations.

--Elizabeth Winfree-Lydon, senior staff consultant, The Employers Group

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Question: A reorganization caused my former employer to let me go after 20 years, but I was offered six months’ of enhanced severance payment in exchange for signing a settlement agreement that basically keeps me from suing the company in the future. However, the company waited two weeks to pay me the vacation time it owed me for 1994 and three weeks to pay the vacation time due to me in 1995.

Is it legal for a former employer to withhold vacation pay until the rest of the severance was paid? If not, how long would I have to file a claim and how much would the company be fined?

--J.S., Irvine

Answer: Generally, an employer must pay at the time of an employee’s termination all earned, unused vacation pay to which an employee in entitled. The only exception is where the employee has resigned with less than 72 hours’ notice to his employer, in which case the employee’s earned, unused vacation pay must be paid within 72 hours of the date of the resignation.

If an employer fails to pay in a timely manner, the employee may file a claim for “waiting time penalties” with the State Division of Labor Standards Enforcement. An employer who fails to pay vacation pay when due on termination may be fined one day’s pay at the affected employee’s last rate of pay for each day the employer is late in paying, up to a maximum of 30 days’ pay. This penalty is given to the employee. Such a claim may be filed up to four years after an employee’s termination.

In your case, however, it is possible that something in your severance pay agreement constitutes a waiver of your right to receive vacation pay on the last day that you actually worked for your employer. You should consult legal counsel to determine whether that is the case if you wish to pursue a claim.

--Michael A. Hood, employment law attorney, Paul, Hastings, Janofsky & Walker