Questioning Personality, Intelligence Tests’ Effects
Q: To what extent can intelligence or personality tests be administered to job applicants, especially those for key corporate positions, as part of the screening process? Generally, a manager or executive’s personality or cognitive abilities will be a very important indicator of success in a position, in addition to experience and training.
--G.A., Newport Beach
A: Intelligence and personality tests are permissible if they do not unlawfully discriminate against anyone--that is, if they do not intentionally or unintentionally “weed out” people with physical or mental disabilities; people older than 40; or people of a particular race, religious creed, color, national origin, ancestry or sex.
Before using such a test, it is advisable to ask the manufacturer if it can assure you that the particular test you are considering does not have a disparate impact on any group of people. If the test has a disparate impact, it can be used only if it can be proved to be job-related and a business necessity. If you do not know the manufacturer or if the manufacturer cannot assure you that the test you are considering has no unlawful disparate impact, you should use the test only if you are in a position to validate it yourself.
--Deborah C. Saxe
Management attorney
Heller Ehrman White & McAuliffe
Pharmacists’ Status May Change in 2000
Q: I am paid an hourly rate as a pharmacist for a large drugstore chain. We are paid overtime only after working 80 hours in two weeks. We also must work from eight to 14 hours a day without a break, not even for lunch. Are these practices legal?
--R.D., Los Angeles
A: Under current wage-hour law in California, the answer is yes.
As a pharmacist, you are considered a professional employee and thus exempt from laws that require employers to pay premium pay to employees who work more than 40 hours in a week. As such, you also are exempt from laws that require companies to provide breaks to employees. Most employers would not require exempt employees to work 14 hours with no break time, but such a practice is not unlawful.
However, under a new California law that takes effect Jan. 1, your job status may change, and your employer will be required to provide you meal breaks.
The new law directs the Industrial Welfare Commission, which makes the rules in California on wage-hour matters, to study whether the exemption for pharmacists should be abandoned or modified in some respect. That review is to be conducted by July 15. It may be, then, that in the near future you could become nonexempt and therefore entitled to premium pay for working overtime.
As for meal breaks, the new law requires that employees who work more than five hours a day receive an unpaid meal break of 30 minutes and that employees who work more than 10 hours a day receive two unpaid meal periods of 30 minutes each. The new law applies to both exempt and nonexempt employees. Effective Jan. 1, then, your employer will be required to provide you with at least one and perhaps two meal-period breaks a day, depending on how many hours you work.
--Michael A. Hood
Employment law attorney
Paul, Hastings, Janofsky & Walker
Paying Company Back for Work Training
Q: I recently applied for employment as an entry-level investigator. During the interview, I was informed that I must agree in writing to reimburse the company $5,000 for training and background screening if I leave the company voluntarily within two years. Is such an agreement legally enforceable?
--B.L., Signal Hill
A: This employer is entitled to require you to agree that you would reimburse it for training if you leave voluntarily within two years. Otherwise, the employer could invest a significant amount of money in training you only to have it go to waste--or, worse, to benefit a competitor--should you leave.
If you sign an agreement to reimburse your employer for the cost of training should you leave, such an agreement would be enforceable. Whether you can be forced to reimburse “screening” costs is less clear.
Section 450(b) of the California Labor Code prohibits employers from charging employees a fee for “processing” an employment application. If the screening to which you refer is done before you have been offered employment, or if the job offer is revocable depending on what turns up in the screening process, Section 450(b) would appear to prohibit the employer from charging you for that screening.
But if the screening is done after you have been hired and is intended simply to help place you in the right job, it apparently would be legal for the company to charge you should you leave.
--James J. McDonald Jr.
Attorney, Fisher & Phillips
Labor law instructor, UC Irvine
Lateness, Morale and Lack of Overtime Pay
Q: I work for a nonprofit organization. We do not get paid overtime and must submit time sheets. I was just assigned by my boss to be on a lateness task force because most employees are three to five minutes late a day. My boss wants me to come up with incentives for the staff to help promote morale in the office.
This troubles me because the staff does not get paid overtime and it’s really not noticed when a staff member stays late but is always noticed when the employee comes to work three to five minutes late.
--S.W., Hauppauge, N.Y.
A: It sounds as if you are struggling between your duty to fulfill the task force assignment of reducing tardiness and your sense of unfairness because workers are not paid for overtime but are still expected to show up on time for work. You need to separate the lateness and overtime issues.
Regarding the lateness task force, there are a variety of incentive programs that can be used to encourage people to arrive at work promptly (and incentives can also be used to improve morale generally). These typically focus on reinforcing positive work behaviors such as promptness, rather than trying to “punish” lateness. There are management books that can provide guidelines and suggestions for incentive programs.
Regarding the sense of unfairness, you need to discuss the overtime situation with your boss. You have drawn a connection between the lateness and overtime issues, but they really are separate.
--Ron Riggio, director
Kravis Leadership Institute
Claremont McKenna College
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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, or e-mail it to shoptalk@latimes.com. Include your initials and hometown. This column is designed to answer questions of general interest. It should not be construed as legal advice.
