Workers' Rights

Employers may administer various tests to potential or current employees in order to determine their fitness to perform the duties of a position. In recent years, many companies have introduced testing for the use of drugs and are administering polygraph (lie detector) exams and psychological tests.

Drug and Alcohol Testing

Growing concern over the impact of drug and alcohol abuse in the workplace has led to an increase in the number of employers who test for drug and alcohol abuse. These tests are performed on employees and, increasingly, on job applicants. Workers in some jobs, such as airline pilots, are required by law to submit to drug and alcohol testing, but an increasing number of employers are requiring employees to submit to testing as a condition of employment.

Some programs use mandatory and random testing. Others test only on the basis of reasonable suspicion. Workers in jobs that are particularly related to safety or security concerns are more likely to be tested. Certain workers, such as those who operate airplanes, buses, and large trucks, are required to take a drug and alcohol test upon employment. They also must submit to testing if they have been involved in an accident.

What happens to job applicants or employees who refuse to take drug tests? That depends on where they work and the state law, if there is one. In many cases refusal to take the test is grounds for not getting a job or being fired.

If a job applicant takes the test and tests positive, he or she may not get the job. If a worker tests positive on a random drug test, treatment and counseling sponsored by the company may be given or employment may be terminated.

These tests have led to controversy throughout the country, because many people think the tests invade personal privacy. According to Working Partners Substance Abuse Information Database, maintained by the U.S. Department of Labor, as of 2006 thirty-three states had some type of regulation relating to drug-testing or drugs in the workplace. Some states ban or restrict random drug testing, while others require that a second, confirmatory drug test be given if the first one is positive. Some states require that the results of these tests be kept confidential, while others limit the type of discipline employers can mete out to employees who fail drug tests. Regulations in Maryland, Nebraska, North Carolina, and South Carolina permit employers to refuse employment not only to those who test positive, but also to those who refuse to take a drug test. All of these states except Maryland permit unrestricted testing of employees; in Maryland testing is permitted if supported by legitimate business reasons ("State-by-State Workplace Drug Testing Laws," American Civil Liberties Union, April 12, 2004).

Polygraph Exams

At one time it was popular among many employers to use polygraph tests on their employees. Many workers resented these tests, and their aversion eventually led a number of states to pass laws limiting their use. In 1988 Congress passed the Employee Polygraph Protection Act (P.L. 100-347), which prohibits most private employers from using lie detector tests either for pre-employment screening or during the course of employment. In most circumstances employers are prohibited from requiring or requesting any employee or job applicant to take a lie detector test. Employers are also prevented from discharging, disciplining, or discriminating against an employee or prospective employee for refusing to take a test or for exercising other rights under this act.

Still, many employers may administer these tests. Federal, state, and local governments are exempt from the Employee Polygraph Protection Act, and the law does not apply to tests given by the federal government to certain private individuals engaged in national security-related activities. Furthermore, the act permits polygraph tests to be administered in the private sector to certain prospective employees of security service firms and pharmaceutical manufacturers, distributors, and dispensers.

The act also permits polygraph testing of certain employees who are reasonably suspected of involvement in a workplace incident, such as theft or embezzlement, that resulted in economic loss to the employer. Some restrictions may apply in these cases, and state or local law or collective bargaining agreements may be more restrictive.

Where polygraph tests are permitted, they are subject to numerous strict standards concerning the conduct and length of the test. People who take polygraph tests have a number of specific rights, including the right to a written notice before testing, the right to refuse or discontinue a test, and the right not to have test results disclosed to unauthorized individuals.

In cases where employers cannot legally administer polygraph testing, they may instead be able to administer what is known as honesty testing. This form of testing is typically a written true or false test that offers choices of alternatives of behavior in given circumstances. There are no wrong answers, but evaluators believe they can use the results to determine patterns of behavior and, therefore, predict who is at high risk for dishonest behavior. Honesty testing has opponents, including some labor unions and others that are concerned about where to draw the line regarding privacy. On the other hand, such methods sustain interest from employers, who wish to make the best hiring decisions and minimize, in some cases, company theft. Employers may also request information such as applicants' credit reports or criminal records

Psychological Testing

Concerned about the high costs and legal problems that can result from hiring the wrong person for the job, some employers are administering psychological tests to prospective employees and to employees who are under consideration for promotions. For instance, employers may administer personality tests to determine a prospective employee's suitability for a particular job, especially when the job is a sensitive position in the public trust, such as police officer or firefighter. This is usually done after there has been a conditional offer of employment. The candidate in those cases will usually be sent to a psychologist or psychiatrist to be tested.

In 2001 the American Management Association (AMA), a nonprofit, membership-based association in New York, found that 29.2% of the 1,627 responses from AMA member and client companies surveyed said they gave psychological exams to job applicants (http://www.amanet.org/research/pdfs/bjp_2001.pdf). These tests included cognitive ability, career directions, personality measurements, and physical simulation of job tasks. For purposes of comparison, 41% of the companies tested applicants on basic math and literacy skills, and 67.6% tested applicants' abilities on specific skills related to the tasks they would perform if hired. However, this survey does not necessarily portray testing policies throughout the U.S. economy since the companies surveyed employ only about one-fourth of the U.S. workforce.

According to Rochelle Kaplan, legal counsel for the National Association of Colleges and Employers (http://www.naceweb.org/) and a specialist in employment and labor law, any requested psychological test results should relate directly to the job. Additionally, access to such test results should be limited to those making the hiring decision.