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Plan to Use Mental Health Tests Has Several Problems

August 18, 1996

Q I own a large company and I am getting more and more concerned about the increase in violent employees in the workplace. I was thinking about hiring a psychologist or psychiatrist to give some "mental health" tests to applicants to screen out those who might be violent or have other serious problems that could disrupt work or even harm others.

Is this a good idea? What sorts of tests are best for this purpose?

--J.G., Long Beach

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A There are a couple of problems with your plan. First, under Equal Employment Opportunity Commission guidelines, a psychological test such as the type you are contemplating can be construed as a medical examination. Under the Americans With Disabilities Act of 1990, medical exams cannot be used for pre-employment screening. Such an exam can be used only when a conditional offer of employment is made.

A second problem concerns the ability of psychological tests to predict violent behavior in the workplace. There has been little good, relevant research on using such tests to predict future violence. Moreover, the actual incidence of persons who become physically violent at work is so small (in relation to the nonviolent majority) that such a testing program would not be very cost-effective.

A much better strategy would be to invest your time and money in a testing program that focuses on the positive, work-related behaviors you want to encourage in your work force. These kinds of testing programs have proven much more successful in selecting good employees than programs that focus solely on weeding out potentially violent or dangerous applicants.

--Ron Riggio

Director, Kravis Leadership Institute

Claremont McKenna College

Don't Approach Worker About Bra

Q I am trying to help a co-worker. She dresses very decently and professionally but never wears a bra to work. The employee handbook does not mention a bra or any undergarment.

Can a supervisor take an employee to task for not wearing a bra? Is there any labor law that would apply? The employee in question is a very good, honest and loyal employee and is also very productive.

--C.D., Los Angeles

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A There is no labor or employment law that directly addresses the issue of wearing (or not wearing) bras or undergarments to work.

The issue usually arises in the opposite context. For example, an employer who demands that female employees wear provocative clothing to work may be violating antidiscrimination laws. Also, although employers are allowed to implement reasonable, nondiscriminatory dress codes, you acknowledge that this employee dresses in a professional manner and otherwise conducts herself properly.

I would not recommend that you approach her about her lack of a bra. Particularly if you are a man, any comments regarding her undergarments--regardless of good intentions--may be perceived by her as harassment.

--Josephine Staton Tucker

Employment law attorney

Morrison & Foerster

Hospital Changes to Follow U.S. Law

Q The hospital where I am employed has always followed state law for employee compensation. Thus, any hours worked in excess of eight a day were considered overtime unless a specific 12-hour agreement forgoing overtime was signed by the employee.

Last year, the hospital announced that all employees would now be paid under federal wage law that pays overtime only for hours in excess of 40 in a week. The hospital says it can do this because it is a special district hospital.

Employees may have to work 12 hours on some days and sent home with only five hours on others. Careful records are kept so that no one works more than 40 hours. Is it legal for the employer to change from state law to federal law like this?

--B.K., Lancaster

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A If the hospital is owned and operated by a state or local governmental agency, then it must comply only with federal overtime law. That's because the California Industrial Welfare Commission has chosen to exempt most government employees from its orders regulating wages, hours and working conditions.

In addition, daily overtime can be avoided through a policy that provides employees with compensatory time off equal to the amount of overtime they would have received. It appears from your description that your employer is doing this.

Therefore, it would appear that your employer has legitimately changed its practices in accordance with California law.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

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