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Brandon M.
Brandon M., Counselor at Law
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My husband was hired as a security guard at a company who has

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My husband was hired as a security guard at a company who has a contract with a defense plant over two years ago. A physical ability test was not required for employment. Now the defense plant is requiring that all employees of the security company pass a physical ability test and if they fail they will be let go. My husband is 58 years old and has not been able to pass the practice testing. Is it legal for them to let him go since the testing was not required for hire at the security company. Anything about bring grandfathered in?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Brandon M. replied 1 year ago.

Brandon M. :

Hello there.

Brandon M. :

Thank you for your question. Does the testing relate to the employees' ability to perform their jobs? Or is it arbitrary?

Customer:

The testing includes running, sprinting 50 yards, jumping and push-ups. The guards do rounds to check locks etc, have to respond to alarms quickly run vehicles not running. I suppose it's possible they might have to run fast in emergency situations. Respond quickly in vehicles....not so much running

Brandon M. :

Is there any possibility that he would have a physical confrontation with someone as a part of his job duties?

Customer:

Yes

Brandon M. :

Ok, so it would probably be fair to say that when someone's job duties involves the risk of physical physical confrontation with another person, it would be necessary to have a certain level of physical ability to perform the job adequately, and that might include things like sprinting, lifting, or jumping because those abilities might be necessary to overpower someone. Arkansas is an employment-at-will state, which means that an employer can modify or terminate the employment relationship at most any time and for most any reason. There is generally no grandfathering protection. An employer can therefore impose new requirements today and remove them tomorrow for most any reason, or for no reason at all. The law generally does not get involved in the private employment relationship between a private employer and a private employee.

That said, some reasons for termination are illegal, and an employer sometimes will create standards for its employees under the guise of necessity, but with the intent of circumventing the illegal restriction. For example, it is illegal to discriminate/terminate against someone because of their age if they are over the age of 40. So if an employer mandates a physical challenge of its employees, it would be illegal if the real purpose was to discriminate against elderly employees who are less likely to be mobile. That is why I asked about whether the test would actually help demonstrate an employee's ability to perform the job--if it really does test the employee's ability to do the job, then it would be less likely that the purpose is to discriminate against elderly employees.

I should be clear that because the nuances of every situation are different, this information should not be construed as complete or advice without consulting in person with counsel. That said, it is legal for an employer to change the work standards for already existing employees, however it is illegal to do so if it is nothing more than a roundabout way of discriminating against employees over the age of 40.

Brandon M. :

I realize that is probably not exactly the news that you had hoped to hear, but I do have to be straightforward because my first responsibility is to give accurate information. Let me know if further clarification is needed, and please feel free to leave a positive rating once you finish (I work for ratings). It does not cost anything extra to do so. Thanks.

Customer:

Thank you for your answer.

Brandon M., Counselor at Law
Category: Employment Law
Satisfied Customers: 12237
Experience: Licensed attorney
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