Hiring Issues:

Testing


OVERVIEW

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

BASIC INFORMATION

FACT SHEETS

E-TOOLS

  • elaws Fair Labor Standards Act (FLSA) Advisor - Helps users determine whether their employment is subject to the FLSA and whether an employment relationship exists between the parties. It also helps users determine what time is considered hours worked, and therefore, compensable under the FLSA.

POSTERS

RECORDKEEPING

  • 29 CFR 801 Subpart D - Each employer who requests or administers a polygraph test to an employee or applicant must maintain records setting forth the specific activity or incident which is the basis of the testing, notices setting forth the time and place of the testing and the employee's rights, and copies of reports and other documents provided by the examiner.

  • Recordkeeping Requirements under the Fair Labor Standards Act (FLSA) - Employers subject to the FLSA are required to keep certain records for each non-exempt employee. There is no required form for the records but the records must contain certain identifying information about the employee and data about the hours worked and the wages earned. The law requires this information to be accurate.

APPLICABLE LAWS AND REGULATIONS

  • The Employee Polygraph Protection Act (EPPA) (PDF) - Prohibits most private employers from using lie detector tests, either for pre-employment screening or during the course of employment.

  • 29 CFR Part 801 - Regulations implementing the Employee Polygraph Protection Act (EPPA).

  • The Fair Labor Standards Act (FLSA) - Establishes the federal minimum wage and overtime pay requirements.

  • 29 CFR Part 531 - Regulations concerning additions to and deductions from the federally required minimum wage and overtime pay requirements.

  • 29 CFR Part 785 - Information concerning the determination of what hours must be considered as hours worked and therefore compensable under the FLSA.

DOL CONTACTS*

  • Employment Standards Administration (ESA)
    Wage and Hour Division
    200 Constitution Avenue, NW
    Room S-3502
    Washington, DC 20210
    Contact WHD
    Tel: 1-866-4USWAGE (1-866-487-9243)
    TTY: 1-877-889-5627
    Local Offices

  • For questions on other DOL laws,
    please call DOL's Toll-Free Help Line at 1-866-4-USA-DOL. Live assistance is available in English and Spanish, Monday through Friday from 8:00 a.m. to 8:00 p.m. Eastern Time. Additional service is available in more than 140 languages through a translation service.
    Tel: 1-866-4-USA-DOL
    TTY: 1-877-889-5627

*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.