July 30, 2019

What Employers Should Know About Prehire Screening
After you have identified a good candidate for a job, what other prehire screening procedures would ensure that this person is the best for the position?  There are several prehire screening procedures employers can use to make more informed hiring decisions.  Prehire screening exists in different forms, including reference checking, drug screening, skill testing, and credit checks.  When used properly, prehire screening procedures can be invaluable in the selection of the best candidate.  It is, however, important to be aware that if used improperly such procedures can expose your organization to potential lawsuits.  As you consider how to screen job applicants, keep in mind that the screening procedure should be appropriate to the work to be performed, and should be applied equally to all similarly situated candidates.

Screening Tool Options
Skill Testing:  It is essential that a skill test is designed to verify skills that are necessary to perform the job.  Before using a skill test, make sure it has been validated by obtaining validity studies.  Also, check to see whether it has ever been the subject of litigation.  If you create your own test, it’s a good idea to consult with an attorney to make sure you comply with state and federal anti-discrimination laws.  Worried if the testing may be considered a working interview?  Read this.

Psychological and Medical Testing:  Keep in mind that there are strict rules when to use medical exams and physical exams sas pre-employment tests before an offer of employment is made.  Also, be cautious when using psychological tests as they can raise privacy issues.  Avoid questions about religion, sex, or politics.  Ask only job-related questions and exclude personal questions.

Drug and Alcohol Testing:  In California, employers can conduct drug-testing of applicants as long as the employer tests all applicants for a particular job posting and doesn’t single out certain applicants based on a protected characteristic but testing of current employees is limited.  It is therefore imperative that if you want to have someone tested, you do so before the person is hired.  Be sure your application form includes a warning that applicants may be required to submit to a drug test, and that failure to take the test could lead to their application not being considered.  Include a space for the applicant to initial that they agree to the drug test.  Unless your organization must require alcohol testing, avoid such tests.  The Americans with Disabilities Act recognizes alcoholism as a disability which may entitle the individual to reasonable accommodations or rehabilitation.

Is this affected by California’s new marijuana legislation?  Proposition 64 explicitly allowed employers to enforce their policies prohibiting the use of marijuana by employees.

Reference Checks:  Applicants should always be required to sign a release statement that authorizes you to contact past employers for job reference information.  It is also advisable to check an applicant’s Social Security number as critical information might not surface in a background check if the number given is not correct.  The Social Security Administration has a free verification service.  You can check up to five numbers at a time by calling (800)772-6270.

Arrest and Criminal Records:  California law bars employers from inquiring into arrests or detentions that did not result in convictions, referrals to participate in pre-trial or post-trial diversion programs, and convictions for marijuana-related offenses that are more than two years old.  However, employers can ask if the applicant is currently under arrest and out on bail pending trial.

Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net.)  Please visit our website at eskridge.hv-dev.com.

This article is based on the law as of the date posted at the top of the article. This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.