The use of tests to measure the qualifications of applicants is, generally speaking, a
valid employment practice. Employers who utilize tests, however, should be aware of the
potential legal ramifications of such use. Drug tests are not considered medical exams.
Under appropriate circumstances, drug tests can be used during the hiring process. Tests to
measure or define an applicant’s personality traits, including honesty and motivation,
generally are not medical exams. However, certain other psychological testing may reveal
mental disabilities and can be considered medical exams.
Employment Eligibility Verification
The Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C. § 1324a(b),
requires that employers verify the identity and employment eligibility of anyone hired after
November 6, 1986 to perform labor or services in return for wages, by completing and
retaining a Form I-9 regarding each such person.
An employee must provide the information required on the Form I-9 and sign and
date the Form I-9 at the actual commencement of employment. Employers are responsible
for reviewing and ensuring that employees fully and properly complete Section I. Proper
completion of Section I is imperative because even if a person is legally authorized to be
employed in the United States, an employer may still be charged with a paperwork violation
if the Form I-9 is either not completed or completed incorrectly. Due to the penalties
imposed for employing a person who is not authorized to work in the United States, it is
important for an employer to establish a tickler system to monitor the expirations of
employment authorizations. An employer must retain the Form I-9 throughout the period of
employment plus one year, or for three years after the date on which employment begins,
whichever is longer.