Working World

When I applied for a job, the background check the company required seemed quite intrusive. The company not only did a credit check, but also had me take a personality test that included questions about my religious practices and attitudes about sex — it felt like an invasion of privacy. Is it legal for a potential employer to require a test like this?

Just how deeply a prospective employer can delve into the personal lives of its employees or candidates for employment is an evolving and controversial area of the law.

The law permits employers to conduct fairly broad background checks. These often include a review of public records to search for criminal arrests and convictions, outstanding judgments or tax liens. While these public records are open to all, in California most employers may not take arrests into consideration as part of the hiring process. (Criminal justice jobs such as police officers, correctional workers and probation officers are exempt from this prohibition.)

Some employers choose to give personality or psychological tests to prospective employees. The more that the test measures characteristics that are related to the job in question, the more likely it is that the test would be deemed legal by a court, if challenged. For example, a test that purports to measure sales ability might be appropriate for a sales job, and a test that purports to measure leadership qualities might be appropriate for a manager’s position. Some tests, even those that are supposedly tailored to the job, may cross into an employee’s zone of privacy.

In sum, whether elements of a background check or personality test are legal depends on the legitimate needs of the employer as compared to the intrusion into the employee’s zone of privacy.

Amy Semmel is an attorney with the firm of Donfeld, Kelley & Rollman. Her practice emphasizes employment, trade secret and business tort law. The information discussed here is a general explanation of the law, and is not intended to serve as legal advice. Readers requiring legal advice regarding a specific situation should consult an employment attorney.