Management Rights - AELE's Home Page

Employee Performance 17-4
compelling interest in maintaining a qualified work force to justify the use
of psychological tests. 40
In addition to constitutional challenges, employees have challenged the
use of psychological tests for particular purposes. Nonetheless, courts
have upheld the use of psychological tests for applicants, 41 probationary
employees, 42 employees exhibiting erratic behavior, 43 and random or
periodic testing (without cause). 44 Moreover, an employee lawfully
requested to perform a psychological evaluation may be disciplined if
he/she or she refuses to submit to the exam. 45 Also, an employee may
not insist on having a lawyer present during the exam. 46
Typically, drug and alcohol testing is treated in a similar manner to
psychological testing. Substance testing, according to the LRC, is a
mandatory subject of bargaining. 47 Thus, an employer may not
unilaterally implement a drug screening or testing proposal for employees
without prior bargaining with the union, and may not refuse to bargain
over such a proposal. 48 In the Town of Fairhaven case, the LRC also held
that a union could agree to a drug testing provision in a labor contract,
and that by doing so the union was not waiving any employee
constitutional rights (search and seizure, privacy, etc.) as long as the
testing occurred when the employer had “probable cause” to test a
particular employee. 49 The Supreme Judicial Court of Massachusetts has
indicated, however, that random (i.e., without cause) drug testing without
an individual’s consent violates the state constitution. 50
Polygraph examinations are also treated like other testing procedures, but
they present a special complication in that polygraph tests may only be
given in the course of a criminal investigation. An employer may not even
suggest that an employee submit to a polygraph exam as part of any
hiring procedure or as a condition of continuing employment unless a
criminal investigation is involved. 51 Where a police officer is under
criminal investigation and is ordered to submit to a polygraph test, a
police department was not required to bargain with the union prior to the
test. 52
Commonwealth of Massachusetts