What, if any, are the legal implications of giving training course participants post-training content tests to validate how much they learned? Is it okay if the tests are not used to as a direct link to their performance assessments? What if the test data are used to assess performance?

Rita Risser Responds:

Interesting question, and one I've been pondering. Especially as we move to various forms of computer-based training, there is more demand to post-test in order to prove the training actually was completed.

Partly it depends on what kind of training you offer. For example, I conduct sexual harassment programs. If we post-test, and participants don't pass, we must be able to show that we worked with them to learn the concepts. Otherwise, if they harass others, the employer could be held liable for negligent retention. I believe there would be similar problems with safety training, environmental compliance, violence prevention and other programs relating to legal mandates.

If the training is skills-based and clearly job-related, then you have a very strong need to post-test and use test data to assess performance. For example, if you are training people to use heavy equipment and they fail the post-test, that will affect their performance back on the job.

The more "soft" the training is, for example leadership skills, the more difficult to post-test and the more attenuated to job performance. Take sales training for example. Many salespeople don't thrive in a classroom environment. They don't do well on tests. Yet they can sell up a storm. Is it fair to downgrade assessment of their performance because they didn't do well on a test? I don't think so.

Another issue is whether the test itself is valid. If the test results are used to assess performance, then they could be considered a "selection procedure" under the Uniform Guidelines on Employee Selection Procedures and must meet the standards for tests in the federal regulations.

Bottom line, if you do not provide legal compliance training, I think you are fine to post-test, as long as test results are not linked to performance assessment. To make that link, you must consult with an attorney who specializes in this area.