Testing the legality of employee personality tests

“You have a nice personality,
but not for a human being.”
  –Henny Youngman

At BNET, Suzanne Lucas (aka the Evil HR Lady) reports that more than half (56%) of companies do some form of personality testing before hiring people. Before you can conclude whether these tests help businesses make good hiring decision, you have to answer a very important threshold question—are they legal?

Despite the apparent prevalence of these types of tests, there is very little guidance available on their legality. Karraker v. Rent-A-Center (7th Cir. 2005) is the seminal case. As Karraker points out, the legality of a personality test by an employer hinges on whether it qualifies as a “medical examination” protected under the ADA. The Karraker court concluded that the ADA covered the MMPI personality test as a protected medical exam. In reaching its decision, the court drew a key distinction between psychological tests that are designed to identify a mental disorder or impairment (medical examinations), and psychological tests that measure personality traits such as honesty, preferences, and habits (not medical examinations). Because the MMPI revealed, in part, potential medical diagnoses such as paranoid personality disorder, the court concluded that it was a protected medical examination. Other personality tests may not dictate the same result, depending on the types of results provided.

Merely because something is a “medical examination” does not mean its use is illegal under the ADA. It merely means that the ADA places certain limits on its use:

	Personality Test Is A Medical Exam	Personality Test  Is Not A Medical Exam
Prior to an offer of employment:	Personality tests are prohibited.	No limits on the use of personality tests.
After an applicant is given a conditional job offer, but before s/he starts work:	Personality tests are permitted, regardless of whether they are related to the job, as long as the employer does so for all entering employees in the same job category.	No limits on the use of personality tests.
After employment begins:	Personality tests are permitted only if they are job-related and consistent with business necessity.	No limits on the use of personality tests.

What does all this mean? The use of personality tests raise complex legal and business issues. If you are considering using personality tests to screen applicants or current employees, tread carefully and not without the input of your employment counsel.

I’m honored to be one of LexisNexis’s Top 25 Labor & Employment Blogs

LexisNexis has released the final nominees for its list of the Top 25 Labor & Employment Blogs, and I am honored and humbled to announce my inclusion. The criteria for inclusion:

The honored blogs contain a wealth of information for employment and labor law practitioners, with timely news items, practical information, expert analysis, tips, frequent postings, and helpful links to other sites.

If you are so inclined, polls are open until September 30 for you to vote for the Top Labor and Employment Law Blog of the Year. If you’re not registered with LexisNexis, this link will allow you to create a free registration or to use your sign-in credentials from your favorite social media site (they promise no sales calls). You can then follow this link to vote.

Thanks to all who nominated me and to all who will vote, whether it's for my blog or those of the 24 other worthy nominees, many of whom I have gotten know over the years and consider friends. It’s an honor to be included in your company.

Disability claims definitely on the EEOC’s radar

I am often asked how I come up with ideas to post 5 days a week, every week. While the answer is a closely guarded secret, I will allow a little insight—the EEOC’s website is a wealth of information. Every news release by the agency announcing a new lawsuit or a settled claim presents an fresh blogging opportunity.

Recently, I’ve noticed an inordinate number of lawsuits filed by the EEOC claiming disability discrimination. So, I did a little digging. In the last 3 months, the agency has announced the filing of 54 new lawsuits. Of those, 22, or a staggering 41%, allege disability discrimination. The rate of filing is even higher when you consider that according to the EEOC's latest charge statistics, only 25% of all charges filed with EEOC contain a claim of disability discrimination. The agency is filing lawsuits at a rate 60% higher than it is receiving claims. These statistics should signal to employers that the agency is scrutinizing how you are handling your disabled workforce.

As I thought about these numbers, I also thought back to Sunday's season finale of Curb Your Enthusiasm, titled, Larry v. Michael J. Fox. Apparently a very good sport, Fox allowed Larry David to ask the age-old question, “Pissed or Parkinson’s?” Larry had shushed Fox while Larry’s girlfriend was playing piano in a lounge, and spent the better part of the episode trying to figure out if Fox’s subsequent behavior (a head shake, an shaken soda, a bump-into) was from anger stemming from the shush, or Fox’s Parkinson’s.

Kudos to Fox for not hiding from his disability, but using it humorously to raise awareness. Perhaps if more people approached disabilities in this open and inclusive manner, we’d have less of a need for EEOC lawsuits.

EEOC sues for disabled shoplifter

As a parent of two small children, I am very cognizant of the importance of leading by example. For example, I don’t want them to them text-and-drive when they are older. So, I try my hardest (and, it’s hard) not to pick up my mobile while they’re in the car with me.

Last week, the EEOC announced that it had filed suit on behalf of a diabetic (and terminated) Walgreens employee who ate a bag of chips off a store shelf:

According to the EEOC, Josefina Hernandez, a cashier at Walgreens’ South San Francisco store, was on duty when she opened a $1.39 bag of chips because she was suffering from an attack of hypoglycemia (low blood sugar)…. Walgreens knew of her diabetes. Nevertheless, Walgreens fired her after being informed that Hernandez had eaten the chips because her blood sugar was low, even though she paid for the chips when she came off cashier duty.

You might think that a $1.39 bag of chips, for which the employee later paid, is not a fireable offense. Yet, no rule is more important to a retailer than its no-shoplifting rule. Most stores have zero tolerance policies, both for customers and employees. It may seem unreasonable to fire a diabetic employee over one bag of chips. Consider, however, that the employer might not want to set a precedent that it is acceptable to eat food off the shelf without paying for it first. If customers see an employee consuming merchandise without paying first, they might think it’s allowed by the store, which makes shoplifting and loss prevention that much more difficult for the employer to control.

There are no hard and fast rules about reasonable accommodations or undue hardships. One employee’s reasonable snack is another employer’s unreasonable exception to an important and unbending rule. I’m not saying that this employer should have ignored the employee’s diabetes in reaching its termination decision, but this case is not nearly as one-sided as the EEOC’s self-serving news release makes it appear.

WIRTW #192 (the “Fly, Eagles Fly” edition)

Man, am I ready for some football!

Also, this is my last pitch for nominations for the ABA Blawg 100 (closes today) and the LexisNexis Top 25 Labor & Employment Law Blogs (closes Monday). Thanks for your support.

Here’s the rest of what I read this week:

Discrimination

• The Connection Between Fantasy Football Leagues and Employment Law – from Dan Schwartz’s Connecticut Employment Law Blog
• The Scooter Store ... yadda, yadda, yadda ... disability bias? – from Eric Meyer’s The Employer Handbook Blog
• “ADA lawsuits questioned after serial plaintiff claiming emphysema caught on tape hiking” – from Walter Olson’s Overlawyered
• Age bias in IT: The reality behind the rumors – from Computerworld
• Employment of Women: Survey of Issues & Initiatives—Workplace Flexibility – from George’s Employment Blawg
• Workplace Religious Freedom Act Expands Protections Against Religious Discrimination – from New York City Employment Lawyer (and congrats to my friend and law school classmate, Amardeep Singh, on getting this passed)
• Rastafarian stands ground on faith – from Roanoke.com

Social Media & Workplace Technology

• Ethical and Legal Workplace Monitoring – from Dawn Lomer at i-Sight Investigation Software Blog
• Hacking Fears Prompt Workplace Social Media Ban – from the Wall Street Journal’s Tech Europe Blog
• TMI? I Don't Really Need To See Your Hamstring – from Social Media Employment Law Blog
• Court Imposes Social-Networking Policy – from Molly DiBianca’s Delaware Employment Law Blog

HR & Employee Relations

• Reasons to Say Goodbye to an Employee – from Workplace Insights
• The 12 Quickest Ways to Get Fired – from Fox Business
• Is It Okay To Fire Someone Over the Phone? – from Workplace Diva
• Gathering Documents in a Workplace Investigation – from Debra Reilly’s Workplace Investigations Blog
• Document Now, Fire Later – from Virginia Employment Law Journal
• There’s more to the office than “The Office” – from salon.com

Labor Relations

• Seinfeld and Labor and Employment Law – from LaborRelated
• Has NLRB Commenced a Big Anti-Business Push? – from The ChamberPost
• Board Holds Employer’s Discovery Requests in Non-Board Litigation Violated NLRA – from Labor Relations Counsel
• NLRB Social Media Memo Part III - Union YouTube Violation – from Phil Miles’s Lawffice Space
• Bill Would Repeal the NLRB’s Employee Rights Notice Posting Rule – from Labor Relations Counsel
• The NLRB’s Unlawful Rule – from National Review Online

6th Circuit volunteers gift to volunteer employees in coverage under Title VII

Lots of people work for free—volunteers, interns, students, and others all provide their time to businesses without receiving any pay in return. Last week, the 6th Circuit, in Bryson v. Middlefield Volunteer Fire Dep’t, decided whether a “volunteer” (a presumably, the other categories of unpaid workers) qualifies as an employee covered by Title VII. The trial court had concluded that Bryson, a volunteer firefighter, did not qualify under Title VII solely because the Department did not pay him.

The 6th Circuit concluded that merely looking at whether or not a volunteer is paid is insufficient. Instead, employers must also examine the degree of control exercised by the employer over the manner and means by which the work is accomplished. In evaluating the degree of control, employers must look at all of the following factors:

• The skill required
• The source of the instrumentalities and tools
• The location of the work
• The duration of the relationship between the parties
• Whether the hiring party has the right to assign additional projects to the hired party
• The extent of the hired party’s discretion over when and how long to work
• The method of payment
• The hired party’s role in hiring and paying assistants
• Whether the work is part of the regular business of the hiring party
  Whether the hiring party is in business
• The provision of employee benefits
• The tax treatment of the hired party

Because Bryson expands Title VII’s coverage, this case reinforces the idea that employers should not use unpaid help without legal guidance. The DOL is looking over your shoulders. The EEOC is looking over your shoulders. Courts are looking over your shoulders. And, your unpaid help is looking over your shoulders. A misstep in how you categorize employees could be a costly mistaken on these multiple fronts.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

NLRB finally gives some real-world guidance on social media as protected, concerted activity

In the NLRB's final act before the long Labor Day weekend, an Administrative Law Judge in Buffalo, NY, issued his decision in Hispanics United—the first written decision in an NLRB case involving social media to result in an ALJ decision following a hearing.

In Hispanics United, five employees claimed that their terminations—on the heals of a Facebook discussion critical of another employee’s job performance—violated their rights under the National Labor Relations Act to join together to discuss the terms and conditions of their employment. The ALJ agreed:

I conclude that their Facebook communications with each other, in reaction to a co-worker’s criticisms of the manner in which HUB employees performed their jobs, are protected.

The ALJ made several key observations about the Board’s treatment of social media posts as protected, concerted activity:

• “It is irrelevant to this case that the discriminatees were not trying to change their working conditions and that they did not communicate their concerns to Respondent…. I find that the discriminatees’ discussions about criticisms of their job performance are also protected.”
• “[A]n employer violates Section 8(a)(1) in disciplining or terminating employees for exercising this right—regardless of whether there is evidence that such discussions are engaged in with the object of initiating or inducing group action.”
• “Moreover, the fact that Respondent lumped the discriminatees together in terminating them, establishes that Respondent viewed the five as a group and that their activity was concerted.”

This case stands for the proposition that social websites are akin to a digital water cooler. If you wouldn’t discipline for water-cooler talk, then you shouldn’t for social media posts. The difference, though, is that social websites leave a digital trail that makes them tempting fodder for the types of retribution that will result in unfair labor practice charges.

Last month, the NLRB’s Office of General Counsel began to provide some clarity on when and how employees' social media activities are protected. Hispanics United provides added clarity, and should give employers added concern over their ability to regulate their employees’ use of social media inside and outside of the workplace. This case likely will now head to Washington, DC, for disposition by the NLRB. Perhaps we will finally receive some needed guidance from the Board on what has become a beguiling issue for businesses.

(In the meantime, if you want to know about these issues, pick up a copy of Think Before You Click: Strategies for Managing Social Media in the Workplace).

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.