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October 3, 2008 DOL Home > Compliance Assistance > By Topic > Hiring Issues > Testing |
Several federal laws determine the conditions under which an employer may require a job applicant or newly hired employee to undergo certain tests before making a decision on whether or not to hire the applicant or before scheduling the new hire for work. The Equal Employment Opportunity Commission has primary responsibility for the enforcement of laws prohibiting adverse impact resulting from pre-employment testing or selection procedures. Pre-employment tests or other selection procedures having an adverse impact on employment of individuals based on the individuals race, sex or national origin are generally considered to be employment discrimination unless they are job related for the positions in question and consistent with business necessity. In addition, an employer may not make employment decisions based on a job applicants need for religious accommodation nor may the employer ask disability-related questions or conduct a medical examination until after the employer has made a conditional job offer to the applicant. The EEOC enforces these protections for applicants and employees of most employers. The U.S. Department of Labor (DOL) Employment Standards Administration's Office of Federal Contract Compliance Programs (OFCCP) enforces these protections for applicants and employees of federal contractors and sub-contractors. The U.S. Department of Labor's (DOL) Wage and Hour Division (WHD) administers and enforces two laws which may affect other tests given to job applicants or newly hired employees the Employee Polygraph Protection Act of 1988 (EPPA) and the Fair Labor Standards Act (FLSA). The EPPA generally prevents employers from using lie detector tests, either for pre-employment screening or during the course of employment, with certain exemptions. Employers generally may not require or request any employee or job applicant to take a lie detector test, or discharge, discipline, or discriminate against an employee or job applicant for refusing to take a test or for exercising other rights under the Act. In addition, employers are required to display the EPPA poster in the workplace for their employees. The FLSA, the federal minimum wage and overtime law, controls when pre-employment or pre-scheduling testing is considered hours worked and therefore compensable and the circumstances under which an applicant or new hire may be required to pay for the cost of such tests. See also Safety and Health Drug Free Workplaces for information on drug-free workplaces, including testing of applicants and employees. COMPLIANCE ASSISTANCE MATERIALS
APPLICABLE LAWS AND REGULATIONS
*Pursuant to the U.S. Department of Labor's Confidentiality Protocol for Compliance Assistance Inquiries, information provided by a telephone caller will be kept confidential within the bounds of the law. Compliance assistance inquiries will not trigger an inspection, audit, investigation, etc. |
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