Legal job question. Is this legal

[mannish]

I am sure this is legal or they would not do it but: If a current employee wants to apply for a job in another IT area with certain technology they must pass a test. There are three levels of the test your position/pay (regardless of your position now) is determined but the level you pass. Chances are good that if can not pass the test you will not be retained due to old system being phased out

however if you are new hire you do not have to take those tests

So if you are a current employee you must pass the test - if you are a new hire you do not have to take the test

How in the world can that be legal except of course this a free will employment state.

[Jahn]

Not real legal advice, but I'd think that they can do it as long as it isn't proof of something like age discrimination.

[andrekp]

Question to you: Why do you think it would be illegal?

[mannish]

Question to you: Why do you think it would be illegal?

because one person has to take a test and another does not for the SAME position.

If two people apply for the same position then you would think the rules would be the same for both

[EricPeterson]

because one person has to take a test and another does not for the SAME position.

If two people apply for the same position then you would think the rules would be the same for both

I am not sure what state or for that matter what country you live in, but I am not aware of a law it would violate, at least on its face, but that does not mean there is not one, employment law is generally state specific, I also dont practice in that area.


FWIW we generally allow businesses to make whatever decisions they want, and yes, except in specific circumstances, businesses can discriminate in employment, they discriminate on the basis of education, experience, personality, previous employment, personal hygiene, etc. And we generally let them make any hiring requirement decisions they want. If they want to have different standards for current employees vs. new employees that is generally their prerogative, no matter how ill advised we might think the decision is. We allow them to exercise their own judgment in making those decisions. You dont want the government or the court's second guessing every little decision the company makes so we give them deference.


Of course, some states and the federal government have enacted laws that deal with some forms discrimination, be it age, race, religion, gender, sexual orientation, etc. These people in "protected classes" I just dont think that this situation falls into one of those protected classes.

But I am certainly open to being proven wrong on this point.

[andrekp]

because one person has to take a test and another does not for the SAME position.

If two people apply for the same position then you would think the rules would be the same for both

Why would that be a law? What interest does it serve? A company has every right to hire people on any criteria that is appropriate, other than those few areas of Federal intrusion in hiring. If this isn't a government job, then it's just unfair. But probably not illegal. Certainly if they can justify it in some reasonable way. (I can actually think of more than one way to justify it)

Now it is possible that there is a local statute or something that would inform this, but if the company does this and has been doing this, it's likely not illegal where you are.

I don't want to sound like I have no sympathy, because I do. It's an unfair crock. But that's how some companies are, and I think I would dislike MORE allowing government to intrude further than they have into business that isn't theirs..

[Boosted]

Most times employers hire new hires based on the premonition that who they ate hiring can already do the job, while someone who "has not the background" should take a compentcy test to show that even though they are in a different environment, they still demonstrate knowledge in the field.

[mannish]

I agree with government staying out of business, that is why I am against non smoking laws (recently passed in my state) & other laws that should be up to the business owner.....but I do think employees should have some rights as well.


I think I would dislike MORE allowing government to intrude further than they have into business that isn't theirs..

[bkd_guitarist]

As long as the test does not discriminate against a protected class (age, race, creed, gender, etc), it is legal. The test must be non-discriminatory both in its intent AND in its end result...i.e., if the end result of the test is that a disproportionate number of employees over age 40 get fired, the test is discriminatory and the affected employees might have a case.

From a business perspective, I get why you would do this type of testing, but I'm not sure why you would exclude new hires. It would make better business sense to me to have everyone demonstrate similar competency.

[mannish]

It will mostly definitely affect a protected class. My thing is if the newhire has the skills then passing the test should be a piece of cake. I know of several people who have taken the test and only one has passed. I think it is designed for people NOT to pass it, that is why the new hires do not take it. I work with them and there is no way they could pass the test. FWIW I am already working in the environment that others will have to pass a test to be accepted. However I may be asked to take the test but not sure that I will

I believe that passing a test only shows you are good at taking tests.


As long as the test does not discriminate against a protected class (age, race, creed, gender, etc), it is legal. The test must be non-discriminatory both in its intent AND in its end result...i.e., if the end result of the test is that a disproportionate number of employees over age 40 get fired, the test is discriminatory and the affected employees might have a case.

From a business perspective, I get why you would do this type of testing, but I'm not sure why you would exclude new hires. It would make better business sense to me to have everyone demonstrate similar competency.

[EricPeterson]

It will mostly definitely affect a protected class.

Which one? I suppose I could see age discrimination, perhaps disproportionate impact on older people?


My thing is if the newhire has the skills then passing the test should be a piece of cake. I know of several people who have taken the test and only one has passed. I think it is designed for people NOT to pass it, that is why the new hires do not take it. I work with them and there is no way they could pass the test. FWIW I am already working in the environment that others will have to pass a test to be accepted. However I may be asked to take the test but not sure that I will

I believe that passing a test only shows you are good at taking tests.

I think this is a fair critique of testing, and I agree that it is not a good idea, but it is not illegal for businesses to act on bad ideas.

[bkd_guitarist]

It will mostly definitely affect a protected class. My thing is if the newhire has the skills then passing the test should be a piece of cake. I know of several people who have taken the test and only one has passed. I think it is designed for people NOT to pass it, that is why the new hires do not take it.

Not having heard the employer's side of the story, your description does make it sound like the test is a ploy to get rid of older, expensive workers and replace them with cheap newbies. If a disproportionate number of the older workers are getting let go after failing the test, they might want to talk with a lawyer.

It's the job of the company's HR department to keep the company out of legal trouble of this kind...it would be quite an egregious mistake on HR's part to let a discriminatory test get out there, but it does happen.

[A-Bone]

Not having heard the employer's side of the story, your description does make it sound like the test is a ploy to get rid of older, expensive workers and replace them with cheap newbies. If a disproportionate number of the older workers are getting let go after failing the test, they might want to talk with a lawyer.

It's the job of the company's HR department to keep the company out of legal trouble of this kind...it would be quite an egregious mistake on HR's part to let a discriminatory test get out there, but it does happen.

I agree. I can see it happening, but I would not rush to assume that the company is doing anything illegal.

Still, assuming that the testing does disproportionately and adversely impact older workers (meaning primarily those covered by the ADEA, who would need to be 40 years old or older in a company with more than 20 employees), there might be a case of a violation of federal and state employment discrimination law. It might well be with a consultation with an employment lawyer or even the EEOC.

[mannish]

There is no doubt, zero in my mind that is the case. Some of these people have been here for a long, long time. I think some people have contacted a lawyer about the age thing cause that is who will be affected.

Not having heard the employer's side of the story, your description does make it sound like the test is a ploy to get rid of older, expensive workers and replace them with cheap newbies. If a disproportionate number of the older workers are getting let go after failing the test, they might want to talk with a lawyer.

It's the job of the company's HR department to keep the company out of legal trouble of this kind...it would be quite an egregious mistake on HR's part to let a discriminatory test get out there, but it does happen.

[bkd_guitarist]

...or even the EEOC.

+1, forgot about the EEOC. As an employer who has successfully defended myself in an EEOC investigation, I can tell you that they are AMAZINGLY responsive to employee complaints. Makes you wonder what makes them work so much faster than the rest of the government.

[flea]

A little devil's advocate I here I guess, but what if none of the older people could pass the test? Would that mean they weren't qualified for the position? If I were a business owner, I'd hate to know I had to keep people that were bad for the position in order to avoid a lawsuit. I agree that everyone should have to take the test and prove themselves, just giving another viewpoint.

[bkd_guitarist]

A little devil's advocate I here I guess, but what if none of the older people could pass the test? Would that mean they weren't qualified for the position? If I were a business owner, I'd hate to know I had to keep people that were bad for the position in order to avoid a lawsuit. I agree that everyone should have to take the test and prove themselves, just giving another viewpoint.

My understanding of the OP is that an old system is being phased out, and employees are therefore being forced to move into new areas of IT. They have to test into those areas, and if they fail, they may be let go. Key questions the EEOC would ask would be:

-Is your new system so radically different that experienced IT employees CANNOT be re-trained to work on it?
-Why is it that a new employee with three years of experience is better qualified for this position than a retrained employee with 20 years of experience?

It's unlikely that you'd have satisfactory answers to these questions, because in all likelihood, the experienced employees CAN be retrained. If the effect of the test is discriminatory against older employees, the burden is on you as an employer to retrain them rather than letting them go.

None of this means that you can't fire problem employees. Say you implement your new system, retrain the older workers, and some of them just can't cut it. Their productivity falls way off, they make lots of mistakes, or whatever. Those are performance issues, and you can fire people for them (again, as long as you're not discriminating). You just can't use a test as a means of weeding out protected workers.

[andrekp]

Another way to look at it is this:

New hires are weeded out regarding technical skills at their technical interview. If a new hire isn't able to do X, the interviewer will determine that and not hire.

Whereas someone already in IT may not have the technical skills, yet have the benefit of thinking they can just slide over into a new position. I used to be in IT and I know that IT departments (maybe yours, maybe not) often have people that just self-trained themselves from older positions. You also have the problem in IT of, depending on your company's technology, long-term employees are not as up on what's current.

I actually think this situation is fairly reasonable for an IT department. Maybe not for no technical jobs, but for a technical job? sure.

[VCuomo]

I am sure this is legal or they would not do it but: If a current employee wants to apply for a job in another IT area with certain technology they must pass a test. There are three levels of the test your position/pay (regardless of your position now) is determined but the level you pass. Chances are good that if can not pass the test you will not be retained due to old system being phased out

however if you are new hire you do not have to take those tests

So if you are a current employee you must pass the test - if you are a new hire you do not have to take the test

How in the world can that be legal except of course this a free will employment state.A better question is "How in the world can that be illegal?"

And regarding supposed age discrimination, it doesn't sound like that test is designed to weed out older employees. Sounds like even a younger employee (say, one that is under 40 who's been with the company for 15 years) would be at a disadvantage in taking that test, not just "older" employees. In other words, long-term employees, regardless of age, would be weeded out if they don't take training to obtain the skills necessary to pass the test. And there's really nothing stopping them from getting that training, is there?

Is it fair? No, doesn't sound like it, especially if the company is not providing the opportunity to the long-term employees to get training on the new system. Is it legal? I bet it is.

[Route234]

The new hires have already displayed some level of competence and experience in that field of IT. I can tell by the original post that these are people who looking to move from one realm of IT to another. Not just simply staying in their own current position with newer technology. They are being considered for fields of IT where they probably have no experience and no skill set that is current. Makes perfect sense to me and it also seems extremely generous of the employer to even create a possibility for people to stay gainfully employed.

Why should a guy with experience and the skillset and proof of it have to jump through hoops? I have worked for places that like to make people jump through hoops and take tests and things like that in order to be hired and it consistently turns off really well qualified applicants.

[VCuomo]

The new hires have already displayed some level of competence and experience in that field of IT. I can tell by the original post that these are people who looking to move from one realm of IT to another. Not just simply staying in their own current position with newer technology. They are being considered for fields of IT where they probably have no experience and no skill set that is current. Makes perfect sense to me and it also seems extremely generous of the employer to even create a possibility for people to stay gainfully employed.

Why should a guy with experience and the skillset and proof of it have to jump through hoops? I have worked for places that like to make people jump through hoops and take tests and things like that in order to be hired and it consistently turns off really well qualified applicants.As someone who was a hiring manager for many years, I can tell you the main reason is that there's really no such thing as incontrovertible "proof". I've had many people come in for an interview who state (both verbally and on their resume') that they have "extensive" experience in XYZ technology (or tool, or programming language, or whatever). Then, when they are asked to take a simple screening test before an interview, they fail miserably. I've had people falsely claim to have a degree, thinking that we wouldn't verify it (one guy actually had a degree, it just wasn't the degree he claimed to have - that was really stupid). And those types of situations happened regularly before the economy got as bad as it is now - I can only imagine what hiring managers go through today.

[bkd_guitarist]

The new hires have already displayed some level of competence and experience in that field of IT. I can tell by the original post that these are people who looking to move from one realm of IT to another. Not just simply staying in their own current position with newer technology. They are being considered for fields of IT where they probably have no experience and no skill set that is current. Makes perfect sense to me and it also seems extremely generous of the employer to even create a possibility for people to stay gainfully employed.

Why should a guy with experience and the skillset and proof of it have to jump through hoops? I have worked for places that like to make people jump through hoops and take tests and things like that in order to be hired and it consistently turns off really well qualified applicants.

This post makes no sense to me. Hiring and managing IT people has been a big part of my job for nearly 20 years, and I can tell you the VCuomo is right on. There is no such thing as "proof" that a new employee coming in the door has the skills to be successful. I've had plenty of people ace the technical interview, have great references, and bomb miserably once they got into the job.

There are so many unknown quantities with a new employee. Do they have a work ethic? Do they have integrity? Can they get along with other team members? Can they follow direction? Can they follow processes? You can't test reliably for any of these...you just have to find out from experience. For that reason, an experienced person who has been with the company for years has a HUGE advantage over a new hire. By comparison, a new hire is a crapshoot. You can teach new technical skills....you can't teach work ethic and integrity.