Seminars

Seattle -- Labor & Employment Complimentary Breakfast Seminar: Are Your Independent Contractors Really Employees? (November 3, 2005). Many employers attempt to classify workers as independent contractors to avoid liability under a number of state and federal laws that apply only to employees. Please join WK&G attorneys Peter Hicks and Nicolette Chavez for an analysis of independent contractor law and the problems that arise if your independent contractors are more appropriately characterized as employees. Space is limited. Please RSVP online or by calling Ainsley Simolike at 206-628-5997.

Hot Case

Unfair Labor Practice Charges Turned Back - WK&G Member Judd Lees helped four different clients recently charged by unions with violating federal labor law governing nondiscriminatory hiring. All four cases involved the unsuccessful submission of applications by known union members to nonunion employers. With Judd's assistance, all four employers successfully convinced the regional office of the National Labor Relations Board that the employers' hiring decisions were made pursuant to well established non-discriminatory practices and procedures. The charges, involving requests for back pay and injunctive relief, were therefore dismissed.

Featured Article

Karraker v. Rent-A-Center, Inc.

by Darren Feider

For years, many employers have used "professional management profile" tests when hiring or promoting in an effort to select qualified individuals and weed out the dishonest or unreliable ones. Generally, employee testing is not unlawful. However, when a test can reveal mental disorders such as depression or paranoia, it may run afoul of federal and/or state disability law and subject an employer to legal liability. This summer, the Seventh Circuit Court of Appeals held Rent-A-Center, Inc. liable for violations of the Americans with Disabilities Act because of the company's practice of requiring management candidates to submit to personality tests. See Karraker v. Rent-A-Center, Inc., 411F.3d 831 (7th Cir. 2005). This article discusses the practical impact of Karraker on an employer's decision whether or not to implement personality testing or other forms of employee testing before hiring or promotion.

As many employers have done in the past, Rent-A-Center required potential managers to submit to an APT Management Trainee-Executive profile before it would consider the employee for promotion. As reported by the court, Rent-A-Center used the executive profile to identify employees who had personality traits that the company found in successful managers. The profile consisted of nine tests that focused on math and vocabulary skills. The profile also included a personality test known as the Minnesota Multiphasic Personality Inventory ("MMPI").

The MMPI is often used by psychologists and psychiatrists to measure cognitive skills and personality traits and to assess symptoms of social and personal maladjustment. The MMPI can be used to diagnose mental disorders and measure personality traits for depression, hypochondriasis, hysteria, paranoia, and mania. The MMPI used by Rent-A-Center consisted of 502 questions, many of which were true or false questions such as: "I commonly hear voices without knowing where they are coming from," "I see things or animals or people around me that others do not see," "[m]y soul sometimes leaves my body," and "[a]t times I have fits of laughing or crying that I cannot control." The MMPI is often administered to candidates for high-risk or public safety positions, such as police officers, firefighters, and individuals who work with children or the elderly. These positions often involve high levels of stress, so the MMPI is used to identify individuals that would arguably be unable to handle such work environments. Likewise, Rent-A-Center described the work environment for its managers as "fast-paced, high-stress environments," so it used the MMPI to identify those who could perform well under such conditions. In essence, Rent-A-Center like many employers, used the MMPI as a forecasting tool. However, after the Karraker decision, employers should rethink use of such personality tests or be exposed to class action disability lawsuits by their employees. Click here for entire article.

Author

Darren Feider is a Member in the Seattle office. His practice involves general employment litigation of wrongful discharge and discrimination claims, the drafting of employment and consulting contracts, non-compete agreements and severance packages for both employees and employers, and conducting investigations for private and public employers in response to EEOC and Washington State Human Rights Commission complaints.

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