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Confessions from an Attorney: Pre-Employment Assessments

August 23, 2017

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A disclaimer: I was a lawyer. I practiced primarily healthcare and employment law. 

A confession: While I advised clients on several employment law issues and even helped to defend employment discrimination cases, I knew absolutely NOTHING about pre-employment assessments. Don’t be surprised. The law is expansive. I laugh when people ask me questions about traffic citations, divorces, estates, or anything else not in my area of expertise. I’m useless to them. But, if you have questions about Stark and Anti-kickback, HIPAA, various other esoteric healthcare regulatory issues, or West Virginia Workers Compensation law, I’m your guy.

The specialty of employment law is a big field. In some of the largest employment law firms in the country, only a handful of the attorneys have handled Title VII Civil Rights issues. One of these firms has over 700 attorneys and they told me that Title VII issues account for less than 5% of their work, and employment selection procedures make up an even smaller percentage. Many employment law attorneys will go their entire career and never dive too deep into issues regarding pre-employment assessments.

The team at Select International has extensive experience dealing with EEOC and OFCCP testing-related issues. We frequently provide guidance on selection system best practices and many of our employees have served as expert witnesses on topics like adverse impact, job analysis, validation studies, etc. We are frequently contacted by law firms when their clients run into trouble in these areas. Matt O’Connell, Ph.D., is one of the founders of Select International and is a Fellow of the Society for Industrial and Organizational Psychology. He has about as much experience dealing with these issues as anyone in the country. I asked him for practical advice he’d give organizations that are working with their attorneys, internal or external, when exploring and implementing selection tools like pre-employment assessments. 

Practical Advice for Organizations Implementing Pre-Employment Assessments

  • If you have in-house counsel, keep them in the loop and make sure they are comfortable with what you are doing. The last thing you want is to have them raise red flags a year into a project. If you work closely with outside counsel on employment law issues, the same is true. 

  • Realize that you may need to educate your attorney. Any good attorney can quickly research and understand the basics, but that doesn’t mean they’ll appreciate some of the nuances or the practical implications.

  • In fact, many attorneys without specific expertise in Title VII cases tend to be leery of assessments. Sometimes, the concern is well-founded. The reality is, though, that when properly designed and deployed, an assessment system reduces subjectivity and, therefore, reduces the risk of running afoul of EEOC or OFCCP rules.

  • Understand "validation," and be aware that it is a term that is often thrown around but rarely understood. If your attorney is asking about it, that’s good. If they don’t understand what it means, that can complicate things. You may need to provide resources and information, starting with why the testing is valuable to your business goals, and then getting into the concepts of adverse impact, job analysis, and various validation methods.

  • Ideally, you can find an attorney who really understands the Uniform Guidelines and some of these concepts. 

  • Of course, your assessment vendor should be able to help you. If all they can say is, “Yes, our test has been validated,” they likely don’t have the expertise you really need. 

Keep in mind the goals of a well-designed, properly-deployed behavioral assessment as part of a larger selection system. The primary goal might be to hire better-performing employees, but the system should also improve hiring efficiency and enhance hiring standardization, consistency, and legal defensibility.

To learn more, download our free white paper on applying evidence-based approach to hiring in healthcare.

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Bryan Warren Bryan Warren is the President of J3 Personica, a consulting, assessment, training, and coaching firm, and a guest blogger for PSI. Bryan is an expert in progressive talent strategies, with a particular focus on leader and physician selection and development.