Employee Screening Programs Law and Legal Definition

Every business wants trustworthy, qualified employees—especially small firms where every employee counts and interpersonal dynamics often assume heightened importance. As a result, pre-employment screening programs are a part of the business landscape in the mid-2000s. According to a 2004 survey by the American Management Association, 63 percent of companies test employees medically before employment; and earlier AMA surveys showed that 43 percent of responding members also tested prospective employees in job skills, psychological fitness, and/or basic competency in math and literacy. Screening programs generally also include some combination of reference and credit checks, verification of employment, investigations into any criminal activity (where allowed by law), and physical/drug testing. Testing before hiring is more efficient than doing so on the job: those who fail need not be engaged. Screening programs can assist in ensuring a proper fit between employer and employee. "A pre-employment test that costs less than $10 can sometimes save a company the thousands it costs to replace a bad match, or the legal fees to defend against liability lawsuits for negligence in hiring a troubled or troublesome employee," wrote Gilbert Nicholson in Workforce. "Tests range from evaluating cognitive skills to identifying personality traits, and can help employers avoid bad apples and match good ones to the right jobs."

Despite the potential value of screening programs, not all companies use such methods. Businesses engaged in industries with traditionally high turnover rates (e.g. restaurants) may determine through cost-benefit analysis that benefits don't warrant the upfront expenditure.

Companies that do engage in workforce screening tend to take one of two routes: they create and administer their own test or use established test and/or the services of a screening company. "Some companies are so specialized, it makes sense to tailor their own instrument to the unique features of their organization," said one testing executive in Workforce. "But that usually requires a company with a human-relations team skilled in test development." In addition, some small business owners choose to execute their own screening programs, but use existing tests to do so. The Buros Institute, Inc. at the University of Nebraska-Lincoln (www.unl.edu/buros) maintains a Tests in Print resource that lists more than 2,900 commercially available screening tests—and may be a good first stop. Finally, many businesses prefer to outsource the entire program. When hiring a screening company to check out prospective employees, it is important that the company itself be fully qualified. Checking it out—including checking with long-time users of the service—is good practice.

Companies using screening should be aware of local, state, and federal laws against discrimination. These may impact both the questions asked of candidates as well as reference, credit, and other checks. Aptitude tests should be job-related and uniformly implemented. Many local and state governments prohibit questions related to criminal convictions. A business should note the difference between an arrest and a conviction: merely having been arrested proves nothing.

Screening protects a business against possible lawsuits. "With the tort of negligent hiring now recognized in a majority of the states, employers have been forced to defend a growing number of suits seeking redress for crimes committed by employees, usually thefts or assaults that victimize customers or co-workers," wrote David Shaffer and Ronald Schmidt in "Personality Testing in Employment" (www.thelenreid.com). Courts may hold companies responsible for injuries their employees inflict on others while on the job. Companies found liable in a negligent hiring suit may be held responsible for punitive damages, medical bills, lost wages, etc. For a small business, such a suit could be potentially devastating. But it should be noted that if a prospective employee has a criminal record, a company's liability in a lawsuit after employment depends on the relevance of the crime to the job.

Fortunately, legal experts say that legal liability on either of these two fronts is unlikely provided that the company in question is careful in creating, maintaining, and monitoring the various aspects of its program. To ensure protection against legal trouble, business owners are well-advised to consult a specialist in employment law before establishing any of the following potential elements of a screening program:

Previous Employment and References

Employers should review resumes and employment histories for gaps in employment. In regards to references, the employer should be sure to contact specific business references as opposed to merely friends and family of the prospective employee. Finally, companies may choose to contact other individuals not listed as references such as previous co-workers, who may provide additional background on the employee. This check may be subject to local or state laws or require the consent of the applicant.

Credit and Vehicle Checks

These may be done through credit agencies used by banks, stores, and others. While checking an applicant's credit and vehicle records is not conclusive regarding qualifications for employment, these records may give an indication of an applicant's dependability or honesty.

Criminal Records

As noted, the use of criminal record searches may be subject to local or state laws against discrimination. Small business owners and managers also must weigh whether the applicant's previous arrest or crime would have a direct bearing on the work that he or she would be doing.

IQ or Personality Tests

Businesses sometimes also use personality or IQ tests to augment less formal interviews in order to round out or verify their impressions of a prospective employee. Outside agencies can run a battery of tests on applicants and provide employers with profiles on each candidate. A small business can also take advantage of current software or standardized tests to handle at least a portion of such testing. Many companies choose to outsource testing and thus cut down the number of applicants for closer view.

Physical Screening or Drug Tests

These are often handled by a qualified clinic or laboratory. Prospective employees provide blood or urine samples to the contracted agency. The company is then sent results and can make a determination regarding employment.

BIBLIOGRAPHY

"Access Criminal Background Checks Online." Arkansas Business. 26 December 2005.

Brownlee, Ken. "Pre-Employment Screening Issues." Claims. July 2005.

"Employee Screening." Security Management. November 2005.

Graham, Cindy Schroeter. "Conduct Background Checks Right." SportsTURF. January 2006.

Nicholson, Gilbert. "Screen and Glean." Workforce October 2000.

Ross, Sativa. "Reference Checks Identify Poor Performers." Aftermarket Business. July 2005.

                                Hillstrom, Northern Lights

                               updated by Magee, ECDI