Pete said I can share this with everyone. And just in general, please remember that if you answer a question send it not only to the person who asked the question but to the whole group so everyone sees the answer and the flow of the discussion. Thanks. JP -----Original Message----- From: Peter Wright/LDOL [mailto:PWright@xxxxxxxxxxxxxxxx] Sent: Wednesday, March 22, 2006 10:05 AM To: jpomerantz@xxxxxxxxxxx Subject: Re: [wiaattorneys] Testing and Job Referral The use of testing, with specific reference to the TABE test, is an issue that the USDOL, Office of Federal Contract Compliance Programs Dallas regional office is aggressively pursuing. That office's jurisdiction concerns federal contractors, but many large employers have federal contracts. A recent case involving the TABE test resulted in a very large settlement, and we have had contact with this issue in Louisiana as a result of a current investigation. USDOL has informally urged us to be sensitive to this issue, and discussions led to a presentation by an attorney from OFCCP to a couple hundred of interested persons, including our department staff and local WIA personnel. The basic message is that any criteria used to screen applications requires "validation" if it has a "disparate impact." ( I suspect many standardized test will have a disparate impact. Apparently this is an especial problem with TABE, which was not designed to be a job screening tool.) Our (our your) offices' screening of applications, however, may shield employers from knowledge about whether the criteria they use to screen applicants are having a disparate impact. The process of validating a screening criteria is highly technical, and is not simply a common sense type judgment. Please note that this applies to any screening criteria used, and not just standardized testing. Thus, from an enforcement point of view, practices whereby we screen applicants creates a glitch, although I think the employer has an affirmative obligation to get the info it needs to look for disparate impact. Department screening also thwarts the collection of evidence in the investigation process. For example, we were screening using TABE, but actually referred folks to one of our partners, the local school board, for the testing. Thus, the investigators had to interview and seek documents not only from us, but also do the same with the school board. The speaker giving this presentation emphasized that record retention was one of her major concerns with such arrangements -- multiple record custodians increases the risk of unavailable records. In short, this type of arrangement makes it harder for OFCCP to build a prosecutable case. My personal take on this is that the TABE test currently is being targeted; little OFCCP concern about other tests is apparent. A area of somewhat less acute concern appears to be the use of prior experience as a criteria as applied to the particular position being filled. My general concern, from both a liability and policy point of view, is that our involvement in any job applicant screening using the employer's criterion makes us a part of the transaction. If a "department of labor" is involved in such situations, it would seemingly be expert in such matters and ensure that the process is done right, i.e., not referring persons for testing that has a disparate impact unless it has been properly validated. As it stands, we have not yet come to a decision about how we are going to address this. The potential impact on our activities in helping employers screen applicants is huge. The issue is complex, and making some staff properly understand the implications is a challenge. Re WorkKeys, I think it's been around at least a little while. I understand that some employers find that it screens out too many people, but that's not my area of knowledge. Peter Wright General Counsel La. Dept. of Labor "Pomerantz, Jane C. (GC-LI)" <jpomerantz@state To .pa.us> <wiaattorneys@xxxxxxxxxxxxx> Sent by: cc wiaattorneys-boun ce@xxxxxxxxxxxxx Subject [wiaattorneys] Testing and Job Referral 03/21/2006 03:03 PM Please respond to jpomerantz@state. pa.us Has anyone dealt with the issue of using a test score for job referral? Years ago, when dealing with GATB, I told my folks not to base referrals solely on the test scores for job referrals. An employer would say don't send me anyone with a score lower than --whatever. Then when the GATB came into disrepute we were sued for discriminating against--whomever--for not sending them to a job interview. The employer in the case defended by saying "we had nothing to do with the test or giving it." Thus my edict. Now there is a new test called WorkKeys which also does assessments. And has been given some validity (pardon my use of that word) as one of the assessment tools approved by US DOL under TEGL 17-05. The test, from what I understand, is also used for specific jobs based on a profile done at the employer's facility to ensure that the levels of skills matches the actual job. We have been told that other states, especially Virginia, SC and NC, are using the test for referrals in addition to skills assessment. Has anyone dealt with this issue? Has anyone dealt with this particular test? Thanks JP Jane C. Pomerantz Deputy Chief Counsel Department of Labor & Industry Phone: 717-787-4186 Fax: 717-787-1303 Wisdom is knowing the right road to take. Integrity is taking it.