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Firm’s Personality Test Can’t Be Discriminatory

Q I am a manager in charge of hiring for a particular field position.

Recently, the company began requiring applicants to take what clearly is a test assessing their personalities. Those who score positively on the test are eligible for an interview and possible hiring. Those who do not score positively are not eligible for hiring.

In addition, the scores are compared with results of tests taken by our successful field personnel.

It is my understanding that any test given to an applicant has to measure his or her ability to perform tasks related to the job. Can I legally administer this “personality” test?

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--D.V., Newport Beach

A As a general rule, tests such as those you have described are allowed. An employer may administer and act on the results of such a professionally developed test, as long as the test or hiring decisions don’t discriminate on some illegal basis such as race, color, religion, sex or national origin.

Federal and state anti-discrimination laws forbid employers from using employment tests that are discriminatory, unless the employer can show that the tests specifically attempt to assess skills and knowledge related to the job in question.

Furthermore, the Americans with Disabilities Act prohibits an employer from using any employment tests that tend to screen out an individual with a disability or a class of individuals with disabilities.

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If an employment test is challenged by an applicant or an employee, the employer must show that the test is job-related. To do this, an employer generally must identify a specific trait or characteristic that the test is attempting to measure, then determine that it is an important element of work behavior.

If you have additional questions about the test that your employer is using, I recommend that you speak to the head of personnel at your company and explain your concerns.

If you still have questions, you might wish to contact the Equal Employment Opportunity Commission or the California Department of Fair Employment and Housing. You can usually ask them questions without identifying your employer.

--Diane J. Crumpacker

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Employment law attorney

Fried, Bird & Crumpacker

9-Hour Day, No Benefits

Q For more than 16 years, I have been listed as a part-time hourly employee at a delivery service.

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I have two part-time job classifications with the company. Putting these two jobs together, I average a nine-hour shift.

Can my employer still legally consider me to be only a part-time employee? My union has filed a request with my employer to change my status to full time and twice since 1995 I have been turned down flat.

I would like to be considered a full-time employee so that I can begin receiving full-time benefits. Can you suggest any sources of information or help?

--W.N., Newbury Park

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A Since you are represented by a labor union, the first place to look for an answer to your question is your collective bargaining agreement. Some union contracts explicitly require an employer to promote part-time employees to available full-time positions based on seniority. Other labor agreements are silent about promotions, or leave them to management’s discretion.

If you cannot find the answer by reading the contract, ask your union representative to highlight the sections that address your question. If the contract appears to support your right to full-time employment, file another grievance and encourage your union representative to pursue it vigorously.

Even if the contract does not support your position, you can work to change it. As shown in the recent United Parcel Service strike, unions are making full-time employment and benefits for part-time employees key issues in labor negotiations. The part-time employees in your unit should make sure that your union leadership is aware of the importance of these issues when setting future bargaining goals.

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--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

Sick Days Aren’t Like Vacation Time

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Q I worked for a company for 12 years and never took any sick days. I was terminated and told I could not get my sick time. Can the company do that?

--E.A., Los Angeles

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A Yes. Under California law, sick leave benefits are not like vacation benefits, which must be paid out at termination if the employee has unused vacation remaining on the books. Sick leave is for emergencies only, to be used only when the employee is sick and unable to work.

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Unless your employer had a written policy of paying out unused sick leave benefits to employees who are being terminated, your employer was not required to reimburse you when you were terminated for any sick leave benefits that you still had on the books.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

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Bonus Checks and Withholding Tax

Q My employer gives a bonus check to its employees at the end of the year. The amount of the check is based on the number of years the employee has been with the firm. They deduct regular employment taxes from this check as well as a “gift tax” of around 12%.

I asked accounting why they took this extra tax out of my check and they told me that they were required by law to deduct this gift tax. Is this true?

--A.I., Los Angeles

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A Normally, when an employee receives a bonus check, the employer deducts a flat 28% for federal withholding.

Without being able to discuss this with the employee’s payroll department, we can only assume that the regular computer withholding program did not allow for the flat amount, and they needed to use another method of entering the correct amount of withholding into the system. Or, they could have made an error.

The only way to verify this is to talk directly to the payroll department.

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--Judith A. Golden

Public affairs officer

Internal Revenue Service

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If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873; or, e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.


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