Hiring and the Law —
Testing Just One or Two Staff?

Devora L. Lindeman, Esq., Partner at Greenwald Doherty LLP, is providing us with insight and information regarding the hiring process. Ms. Lindeman is a management-side employment lawyer and has exclusively represented managers and companies in federal and state agencies and courts with regard to their labor and employment needs for many years.

Questions addressed to Ms. Lindeman may be addressed in this column.

Hiring and the Law
By Devora L. Lindeman, Esq.*

Question:  Can an employer do personality or other similar testing on just 1 or 2 of his or her existing staff to find out about them without also testing the rest of the staff? Is this opening the door to potential legal action?

Answer:  The answer depends on why the employer wants to do the testing.  One of the main concerns with employee testing is to ensure that it is not done in a discriminatory manner.  If the employer appears to be singling out the women for testing, when not testing the men for example, or makes other divisions along lines that could be perceived as being discriminatory, the employer runs the risk of an employee claim that the action was, indeed, taken for discriminatory reasons. This is especially so if an employee suffers an adverse employment action as a result of the testing.

There may be times, however, where testing a few, but not all, of an employer’s current employees may be appropriate.  For example, if the employer is choosing between two candidates for a promotion it would be acceptable to test both of those candidates, but not test any of the other employees who are not promotion candidates.  This is a legitimate reason to test only those two employees and not the others.  The testing done may give the employer insight into which employee to promote.

Thus, whether it would be legally prudent to test just one or two employees depends on the reason the employer wants to “find out about them.”

As with all testing, however (including pre-employment testing) it is best not to use the test as a tie-breaker or definitive determining factor in making any employment decision.  Test results should be looked at as part of a package of information that an employer is considering.  While testing can provide good insights into candidates and employees, it is prudent to consider all the information to hand in these situations.  This is especially so where the testing results do not jive with what has been observed about the employee.  For example, if the test shows the person has a good communication level, but the person who interviewed clearly did not – don’t rely on the test alone.  Consider what you observed and remember that it is the person, themselves, who is answering the test questions and is answering as to how they perceive themselves.

If, on the other hand, an employer is considering doing testing because an employee is not performing well and the employer wants to “find out more about” the employee—that may not be an appropriate time for testing.  The test results won’t change the fact that the employee is performing poorly and may, more likely, lead to a legal claim by the employee that he or she was being singled out for some reason when being “subjected” to testing.

Accordingly, whether an employer can test some, but not all, employees really depends on the situation.

*Ms. Lindeman is a Partner at Greenwald Doherty LLP, a law firm that exclusively represents businesses in all aspects of labor and employment law.  These columns are intended to be general information regarding the topic discussed and are not to be considered legal advice regarding a specific situation. Contact a management-side employment attorney familiar with the law of your jurisdiction for specific advice.  Ms. Lindeman is admitted to practice law in NY and NJ and may be contacted at DL@greenwaldllp.com.  She is under no obligation to respond to reader inquiries personally, but may answer general employment law questions through this column.

© 2011 Greenwald Doherty.  May not be reprinted without permission.

To see how our employee test can help you bring better people on board watch this three minute video.

If you have ever interviewed someone and later discovered a "different" person is working for you, check out our new book How To Hire The Right People.

Don’t Hire “Bad Apples”

Don't Hire Bad Apples Image

Listen to the Hiring Tip Here

Every day, thousands of business owners interview people looking for a job. Some of these prospective staff look and sound great but a month or so down the road quit unexpectedly or compel the owner to fire them.

A good percentage of these ex-employees didn’t have the skills (or desire) to do the job asked of them. But some of them were “bad apples” and should have been avoided at all costs.

Before we go any further, we should define what a “bad apple” is. Here are some of the characteristics:

  1. They are skilled complainers. They complain often about work conditions. They may complain about their pay. They may complain about customers who require more care and attention than the average customer. Complaining comes easy.
  2. They may use gestures to complain. For example: The boss issues an order and, after the boss turns his back, they frown while making sure everyone sees that they’re unhappy with the boss.
  3. They create upsets amongst the staff. They will tell Mary that Sarah did such-and-such wrong. Often they will then go tell Sarah that Mary doesn’t really know how to do her job. They are very good at causing employees to be upset with each other AND they are able to pull off this feat without others knowing they did so. The word “covert” may have been coined with this “bad apple” in mind.
  4. They find reasons NOT to get something done. This is an area of high creativity.
  5. When criticizing others, they are quick to tell you how important it is to be honest. They may have invented the phrase: “constructive criticism”. But there is nothing constructive about this person’s motives. He smiles while holding a very sharp knife behind his back.
  6. They are also very skilled in getting employees to think less of the boss. They will usually avoid those employees who absolutely love the boss. They’ll go after the employees who are not yet really happy about being a part of the team. The image that comes to mind here is a lion attacking the weakest members of the herd. These “bad apples” can be quite skilled, yes, but if they can score a workplace upset quickly and easily, they’ll go for it. Courage is not one of their attributes.
  7. They will give you the impression they care about your business and that they are going the extra distance for you. They will appear happy when your business does well. Almost always, these are false impressions. They don’t really want others to succeed.

A business with even just one “bad apple” can be at a real disadvantage. The skilled ones cause a variety of problems, some of them obvious, some of them hidden. But the end result is always the same: lost revenue and a workplace that is increasingly unpleasant to be in.

So, how do you make sure you don’t hire a bad apple?

My best advice is to find out more about the people you hire BEFORE you hire them. Go to HireBetterStaff.com and watch a 3-minute video that explains how testing people first can make a huge difference in the quality of your staff. Below the video is a link to a free test being offered to business owners. There are NO strings attached to this offer. You take the test for free. If you’re impressed, we’ll tell you more about our testing service.

To see how our employee test can help you bring better people on board watch this three minute video.

If you have ever interviewed someone and later discovered a "different" person is working for you, check out our new book How To Hire The Right People.

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