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John, Employment Lawyer
Category: Employment Law
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Experience:  Exclusively practice labor and employment law.
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Testing applicants before they get hired seems to be quite

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Testing applicants before they get hired seems to be quite the norm these days. This is coupled with a variety of background checks. Are employers going too far? Why all the emphasis on testing and checking? What are some personal examples of this that you have had to go through to get a job?
What are examples of specific types of vicarious liability for your business or employer or for another organization with which you are familiar? Discuss examples consisting of the acts of employees, ag
Hi, thanks for requesting me again.

Pre-employment testing most likely has increased in usage with the loose labor market of the last few years and employer's access to various instruments and background check companies. Practically, with so many applicants, employers may simply be at a loss as to how to select the right employee. Employers' intent is probably neutral - their application forms and pre-employment checks, testing and interviews are primarily intended to eliminate undesirable or unqualified persons and, perhaps less so, identify the ideal person for the job. Although many studies have shown little to no correlation between such pre-employment testing and job performance.

Personal experiences I have had with pre-employment testing have consisted of in-box testing (e.g., being given several mock emails voice mails and asked to sort and prioritize messages) , role playing based on a certain background and factual problem that was supposed to have occurred in everyday business, problem solving tests(multiple choice questions).

There are a couple of potential hazards in testing and applications. Even though the intent of such instruments may not be to discriminate, they may have a disparate impact on certain classes of persons. As such they are regulated to some extent by state and federal law. Employers are prohibited from using preemployment tests or inquiries, and minimum requirements that disproportionately screen out members of protected groups and are not valid predictors of successful job performance or cannot be justified by business necessity. A practice that has a discriminatory impact, regardless of employer intent, is unlawful unless the employer can show it is necessary for the safe and efficient operation of the business, that it effectively carries out the purpose it intended to serve, and that no alternative practice would better or equally serve the same purpose. Many issues have arisen under this standard - IQ testing, height/weight requirements, ability/dis-ability inquiry, personality testing e.g., the wonderlic test), use of criminal record - that have been found to have a disproportionate impact on protected classes. Specifically, in the use of criminal background checks, employers have a duty to ensure safety in their workplaces, however blacks and Hispanics on average have a higher arrest/conviction rate than caucasians. As such, making personnel decisions on the basis of arrest records may have a disproportionate effect on these groups. As such the courts and EEOC have held that without proof of business necessity, an employer's use of arrest records to disqualify job applicants constitutes unlawful discrimination. Another example is the the ADA expressly prohibits pre-offer disability inquiry absent a glaring inability to do the job.

I believe this answers your question. However, if you need clarification or have follow-up questions regarding this matter, I will be happy to continue our conversation – simply reply to this answer. If you are otherwise satisfied with my response, please leave a positive rating as it is the only way I am able to get credit for my answers. Thank you, XXXXX XXXXX wish you all the best with this matter.

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Customer: replied 3 years ago.

Hi my friend,


This question was not clarified please explain, did not understand


What are examples of specific types of vicarious liability for your business or employer or for another organization with which you are familiar? Discuss examples consisting of the acts of employees, agents, or others that can arise for the organization. What specific practical steps can the organization take to minimize the potential cost of such vicarious liability?


I see, I thought your question looked cut off. Anyway

Specific examples - an HR person / inteviewer asks an applicant about his/her physical disabilities during an interview prior to a job offer, 2) an employee asks for a picture or the age, weight sex, gender of an employee withut a reaonable mnecessity for the inromation, 3) asking about things that may inherently discriminate against a particular protected group, such as criminal hisoty absent a business necessity. These are all things an employee/agent could do to subject the employer to "vicarious" liability.

What steps can be taken to minimize vicarious liability. Adopt EEOC guidlines on interviewing into company policy, identify critial elements of jobs through job analysis and limit application and interview inquiries to performance related criteria related to critical knowledge, skills and abilities required for the position.

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