By Christine Thelen, Manager, HR Services, Trupp HR.
Continued developments in federal state and local employment laws can quickly cause your recruiting and hiring practices, as well as job applications and other associated documents, to become out of date without your even being aware of it.
Have you been using the same job application for years? Does it ask applicants about their criminal record? These legacy documents can put your organization at considerable risk. Do you invite employees to participate in interviews? Do you take extensive notes? These practices are valuable but must be managed very carefully to minimize liability. It may be worthwhile to evaluate your hiring process to ensure everything complies with legal requirements.
Because of its open-ended nature and the number of people involved, interviewing can be a particularly risky stage of the hiring process. Paying attention to a few simple best practices can go a long way toward protecting your organization. Following are four of the most important legal guidelines applicable to the interviewing process. Employers should be sure that all employees involved in conducting interviews are properly trained on these items before they step into the interview room.
1. Avoid questions and statements that can suggest discriminatory hiring.
Because the law assumes that any questions asked on an employment application or in a personal interview are used to make a hiring decision, it is important to limit application questions and interview topics to only issues that relate to an applicant’s qualifications for a particular position. Avoid questions related to age, marital or family status, ethnicity or national origin, and other protected characteristics. For example, you should not ask for an applicant’s date of birth, whether they are a U.S. citizen, what their native language is, when they graduated from school, or whether they have children. You can ask whether they are authorized to work in the U.S., what languages they read, speak or write fluently, or whether they are available to work overtime on occasion with short notice. The rule of thumb to live by is, if a potential question will not help determine who is the best-qualified applicant, do not ask it.
2. Treat disability issues carefully.
Employers may not make hiring decisions on the basis of an applicant’s medical situation or disability, except in circumstances when the applicant’s medical situation or disability prevents him or her from carrying out the “essential functions” of the job. This means that employers cannot ask questions on applications or in interviews that are likely to elicit information about a disability or medical issue, unless there is reason to believe that the applicant has a disability, such as the applicant telling you they have a disability or when the disability is obvious. If you learn of a disability during an interview, limit your questions to whether the applicant “is able to perform the essential functions of the job with or without reasonable accommodations”. Employers also can ask applicants how they would perform a given task listed on the job description, or if they can meet the physical requirements for a job, such as whether they can lift a certain weight. Further inquiry into what accommodations an applicant may need and other steps necessary to determine if the employee can perform the essential functions of the job must be reserved for after you have made an offer of employment.
3. Save questions related to convictions, drug use, and background checks for after making a conditional employment offer.
Similar to disabilities, federal, state, and local laws and regulations have been put in place to encourage employers to make initial hiring decisions without regard to past criminal history or drug use. Employers should save questions and consent forms related to background checks, drug tests, and criminal backgrounds until after a conditional offer of employment has been provided. Employers can, however, notify applicants if they will be required to take a drug test or background check, or if there are statutory requirements related to criminal history or drug testing that apply.
4. Be careful what you write.
Taking notes while conducting an interview is a best practice. These written comments, however, can create problems down the road if an applicant challenges a hiring decision. Just like interview and applicant questions, written comments should be focused on details related to whether the employee is qualified for the job, and not characteristics that can lead to a discrimination lawsuit. For example, comments about an applicant’s appearance or age are not appropriate. Before you write a comment, make sure you would be comfortable explaining to a judge and jury how it helped you evaluate whether the applicant was qualified for the job.
Taking precautions to ensure a legally sound hiring process, including making sure that your team is trained to frame questions appropriately not only helps to protect your organization from legal risk, but also makes the interviewing process more effective. Focusing on a candidate’s qualifications for the job, in the long run, contributes to hiring more capable and productive employees.
Note: This article was originally published in July, 2015 and has been updated and republished to incorporate current best practices and employment law trends.