That dilemma’s at the heart of a controversy surrounding the police force in Washington, D.C., which may lead to the force’s Human Resources director losing her job. Here’s the skinny:

The Capitol Police have a policy against hiring cops with prior criminal convictions and conducts background checks to make sure all applicants are clean.

But recently, a batch of 60 officers-in-training were hired — and it turns out 15 of them had criminal records or “other irregularities” and lied about them. Apparently the convictions appeared on the background checks but the applicants were hired anyway.

How’d they slip through the cracks? No one’s sure yet, but a thorough investigation is planned by the D.C. government.

In the meantime, the force’s HR director has been put on administrative leave. Many government officials and members of the public have called on the force’s HR director to resign, or be terminated.

Starbucks is rolling out a company-wide efficiency initiative, with the goal of getting employees to work faster. Part of the training process: taking apart and reassembling a Mr. Potato Head doll. For two hours straight.

One Starbucks manager told the Wall Street Journal that a member of the “lean team” came to her store, sprinkled parts of the toy across several tables and timed the manager with a stopwatch as she assembled the pieces.

Then she was told to do it again. And again. And again, for nearly two hours.

How’d that make the manager feel? Impressed, actually.

Though the first time trial took more than a minute, by the end, she could complete the task in 16 seconds. “That really opened my eyes,” the manager said.

Here’s a real-life example of how trying to control off-the-clock behavior can leave employers on shaky legal grounds:

The Scotts Company in Massachusetts started a wellness initiative that included a policy against employee smoking — both on and off the job. Employees would be required to submit to nicotine testing. The company said the policy would:

• Lower medical costs significantly, and
• Promote healthier lifestyles.

The company hired Scott Rodrigues and required him — like all potential employees — to take a nicotine test. He worked for two weeks while the results were pending. However, the test revealed Rodrigues was a smoker, and he was fired.

Rodrigues sued, claiming mandatory nicotine testing violated Massachusetts’ Privacy Act. He argued that he had a reasonable right to privacy outside of work. He also pointed out that smoking was legal and had no bearing on his job performance.

A court first sided with Rodrigues and let the case move forward. The state’s Privacy Act protects citizens’ rights to “unreasonable, substantial or serious interference,” so the court had to examine whether Scotts had a legitimate business reason to enforce the policy and require the testing.

But the case was later thrown out. This time, the court ruled Rodrigues had no privacy protection because he never tried to keep his smoking habit private. However, if he had, he might have won.

The lesson: If your company’s considering a wellness program with rules about what employees can do on their own time, make sure you check your state’s laws. Many have rules against firing someone because of legal activities they do outside of work.

Other jurisdictions, such as Connecticut, expressly forbid firing or discipline based on tobacco use away from the workplace.

What do you think? Should employers be able to create policies like the Scotts Company’s? Give us your opinion in the comments section below.

Cite: Rodrigues v. EG Systems, Inc.

That issue came up in a recent lawsuit brought by a group of Washington, D.C., firefighters. All firefighters were required to be clean shaven to ensure their respirator masks fit properly.

Firefighters used the respirators to breathe when a fire created a lack of oxygen. To work properly, the devices must fit tightly against the skin; any gaps caused by facial hair could disrupt the supply of clean air.

Several firefighters who wore beards for religious reasons refused to shave and asked for an exemption from the policy. The department refused.

So the employees sued, claiming they were unfairly denied a religious accommodation. The fire department countered that the policy was necessary to keep employees safe.

The problem: Two types of respirators were used, depending on the situation. Only one posed a safety risk for bearded employees.

The court ruled the firefighters with facial hair could reasonably have been deployed only where they could use the other respirator. Therefore, it was possible to exempt them from the policy.

Cite: Potter v. District of Columbia

As HR pros know, using pre-employment tests that have an adverse impact on a protected class can get companies dragged into court. But here’s some news: Trying to avoid a disparate impact can get you in trouble, too.

That’s what happened to the fire department in New Haven, Connecticut, which argued its case before the Supreme Court yesterday.

The department used a test to choose candidates for promotions to captain and lieutenant. The employees with the highest scores — and therefore those who would’ve been promoted — were all Caucasian.

But those employees weren’t selected. The scores excluded several African-American and Hispanic employees who applied for promotions. Believing the test was biased, management decided to throw out the results and base the decisions on other factors.

However, in trying to avoid one legal problem, the fire department got hit with another: 20 white applicants sued, claiming they would have been promoted if the test counted. By tossing the results, they said, the department was discriminating against them because of their race.

Two courts disagreed and threw the case out. Companies are obligated to make sure tests are unbiased, the courts ruled, so the fire department couldn’t be held liable ignore a selection procedure it believed was against the law.

The story didn’t end there. The employees appealed and the case is now being heard by the Supreme Court.

The early word after arguments were heard yesterday: Opinion is split between the Court’s liberal and conservative blocs, the Hartford Courant reports.

Justice Antonin Scalia remarked that “setting aside a test because one race prevails” is essentially making a race-based decision. On the other side, Justice David Souter said the fire department faced a “damned if you do, damned if you don’t situation.”

The result of the case could have a big impact on how companies need to evaluate pre-employment tests. We’ll keep you posted.

What do you think? Should the fire department have used the test results in its decisions on who to promote? Tell us what you think in the comments section below.

In one recent case, the fire department of Portsmouth, Virginia, was sued by a group of unsuccessful job applicants. They claimed the employer’s selection procedure unfairly weeded out African-American candidates.

The focus of the dispute was a written examination. About 86% of Caucasian applicants passed the test, while African-Americans passed at a rate of just 42%.

Also, the applicants claimed the test wasn’t necessary or job-related.

Who won? Unable to get the case thrown out by a judge, the fire department ended up settling for $145,000.

The bottom line: Companies can get in trouble when pre-employment tests adversely impact a protected class, even when there’s no intentional bias. That’s why employers should be aware of how different groups perform during the selection process.

Note: Even if a particular test has an adverse impact, companies can still use it if it’s job-related, consistent with business necessity and there is no non-discriminatory alternative available.

New hires at SuccessFactors, a software firm based in San Mateo, CA, are required to sign off on a list of 15 corporate principles.

Number 15: “I will not be an a–hole.”

CEO Lars Dalgaard implemented that policy after years of corporate experience taught him that jerks (as we’ll call them) “stifle performance,” he told the San Francisco Chronicle.

As for the harsh language, he said the rule would be easier to ignore without it.

What also makes the rule tough to ignore is that Dalgaard isn’t afraid to enforce it. One time, he took a group of job candidates out to lunch at a local restaurant. Those who weren’t friendly to the waitstaff weren’t brought back to continue the interview process.

Ever worked at a company that needed a policy on jerks? Do you think a rule like Dalgaard’s is good for a company or just an impractical gimmick? Let us know your opinion in the comments section.

In some cases, yes, according to the Equal Employment Opportunity Commission (EEOC).

The EEOC recently settled a lawsuit against the Salvation Army over a company policy requiring all employees to speak English on the job. The company handbook listed “fluency in English; written and spoken” as a qualification for employment.

Due to that policy, two Spanish-speaking employees were fired after failing to learn the language while working for one of the employer’s stores.

Last week, the EEOC agreed to settle the case if the requirement was changed.

The new policy requires “an ability to speak and understand English in a manner that is sufficient for effective communication with supervisors, employees, beneficiaries and customers, based on the assumption that such individuals can only speak and understand English.”

Also, the new rule bars the company from rejecting applicants because they speak a language in addition to English.

In other words: Requiring fluency in one language is discriminatory. Hiring employees with the ability to communicate with customers, bosses and each other isn’t.

Many applicants will try to get around the test, according to a recent survey by testing service provider TestCountry.

In a poll of 3,500 construction, transportation and manufacturing employees, 55% said they had tried to cheat on a drug test.

The most common methods use by those who said they cheated:

• Diluting the specimen by drinking a lot of fluids (45%)
• Using chemical screens designed to mask signs of drug use (23%)
• Substituting another person’s urine sample (19%), and
• Other methods (13%)

What can companies do about it?

TestCountry recommends switching to tests that use a hair sample, which are more expensive but nearly impossible to cheat. Also, random tests of employees can help cut back on drug use.

Many companies run into trouble with the Americans with Disabilities Act when they ask job applicants and new employees for medical information. Here’s are six keys to staying out of court:

• Give the tests to all new hires for similarly situated positions
• Only ask for a physical after a job offer has been made
• In your written offers, mention they are contingent on successful completion of a medical exam
• Make sure the results are confidential
• Only test to make sure the employees can perform the essential functions of the job, and
• Put those requirements in your job description so applicants are aware of them beforehand.