Trying applicants on for size: Know the limits of job tryouts

Ever been fooled in a job interview? Some applicants interview well but then turn out to be disappointments on the job. Others might seem iffy during the interview process but become star employees. The uncertainty inherent in the hiring process has led many employers to devise ways to test candidates in real world situations, either with job simulation programs from vendors or by developing their own tryouts.  

Creating scenarios that provide a glimpse of how someone will perform on the job may sound like the perfect solution to the shortcomings of the hiring process, but the cons have to be considered along with the pros.

Simulation software from outside vendors vs. DIY
There are vendors that have created systems to help employers identify the candidate that not only can prove he or she will be able to do the job but also will make a good “fit” for the employer. Judging fit can raise a red flag, according to John W. Herrington, an attorney with the Carlton Fields Jorden Burt law firm in Hartford, Connecticut.

“For an employer considering whether to invest in this type of selection tool, it seems to me that the primary business and liability concerns are the same,” Herrington says. “In evaluating such software systems, the employer, along with in-house or outside counsel, must consider the extent to which the software simulates the actual duties of the particular job opening and properly evaluates the candidate’s ability to perform those job duties.”

Job simulation programs are a type of pre-employment testing, and such tests present a risk that a candidate turned down for a job may bring a “disparate impact” lawsuit. Disparate impact claims can be brought when an employer doesn’t intend to discriminate but its practices nevertheless have a discriminatory effect on a particular class of individuals.

Herrington says an employer’s potential liability “is roughly inversely proportional to the software’s ability to simulate and evaluate the actual duties of the particular job.” So the employer needs to look closely at how well the product actually identifies the most qualified candidates. “That is not, however, the same as finding the best ‘fit’ for a job,” he says.

Herrington points to a recent ruling from the Second U.S. Circuit Court of Appeals (which covers Connecticut, New York, and Vermont). Abrams v. Department of Public Safety warns that the use of a term such as “good fit” in connection with a hiring decision may be enough to subject an employer to a discrimination lawsuit.

“While the use of such a term itself does not prove discrimination, I would advise employers to take care not to use such terms in connection with a screening tool that could conceivably filter out a disproportionate number of protected class applicants,” Herrington says.

Some employers will devise their own simulations or put applicants in a tryout situation, and Herrington advises them to make sure they are truly replicating the job openings. He says the “hard part is establishing a system that effectively evaluates applicant performance.”

Tips for including job simulation in hiring process
“From a liability perspective, evaluation is a key factor in validating a pre-employment test,” Herrington says. He points to a Second Circuit case, Gulino v. New York State Educ. Dept., in which the court established five factors for determining whether an employment test has been properly validated:

1. The test makers must have conducted a suitable job analysis.
2. They must have used reasonable competence in constructing the test itself.
3. The content of the test must be related to the content of the job.
4. The content of the test must be representative of the content of the job.
5. There must be a scoring system that usefully selects those applicants who can better perform the job.

Employers also need to keep wage and hour obligations in mind if they put job candidates through a tryout. There may be a fine line between a skills test that’s part of a job interview and compensable time if the candidate is doing actual work for the employer.

“The law is not clear on this area,” Herrington says. “However, the more the simulation or tryout looks like work being done for the benefit of the employer, the stronger the case for compensation.”

Herrington also says for certain employers, it’s conceivable that a tryout may raise issues with the creation of intellectual property.