“How do I hire a good employee?” “How do I undertake comprehensive interviews of job applicants?” These are questions I often receive from clients, and they are good questions to ask if you share any of the same uncertainty they do. Employers regularly overestimate their ability to conduct quality interviews; this could have repercussions down the line even if you decide not to hire an applicant.
Even at the interview stage, employers face potential legal liability. For example, under federal and state law, it is illegal to discriminate against an applicant on the basis of status: race, color, sex, religion, national origin, citizenship, disability and age. Connecticut state law also prohibits employers from discriminating on the basis of transgender status, gender identity or expression, sexual orientation, marital status or civil union status. Similarly, discrimination on the basis of sexual orientation, domestic violence victim status, familial status or marital status in hiring is prohibited under New York state law.
Finding an employee who will be loyal, hard-working and a “good fit” for the business is challenging enough without the additional hurdle of ensuring your decision not to hire someone won’t be the subject of a future lawsuit. While there is no way to prevent a claim from being made, there are ways to minimize exposure. Here are a few tips:
What You Should Do:
- To the extent possible, standardize the application and interview process. Make sure that all applicants for a particular position are asked the same questions. This decreases the chances of asking inappropriate questions. Creating a list of standard interview questions (depending on the particular position) may help streamline this process.
- Make sure that questions are objective. Most importantly, keep questions focused on the job requirements and the skills necessary to perform those duties.
- Maintain detailed interview notes on each applicant. Notes taken during the interview should be objective, factual and concise. Avoid unnecessary commentary unrelated to the applicant’s experience and qualifications for the position. Always keep in mind that these notes will be subject to disclosure should the applicant later bring a claim for failure to hire.
- If you choose to perform background checks on potential employees, conduct the checks on all applicants across the board. If you selectively perform background checks, you are at risk for claims of discrimination.
- If you are not responsible for screening and/or interviewing potential hires, make sure to train those responsible on the appropriate subjects for inquiry and topics to avoid.
What You Should Not Do:
- Do not make promises to job applicants. General comments about job security may bind the employer in the future.
- Do not ask questions that elicit information about an applicant’s status: race, color, national origin, age, religion, military status, gender, marital status, physical attributes or sexual orientation.
- Do not ask about an applicant’s workers’ compensation history, prior sick leave usage, illnesses/diseases/impairments or general physical and mental health.
- Do not require pre-employment medical examinations. Employers may only require medical examinations after an offer of employment has been made to a job applicant and prior to the commencement of job duties. The employer may ask disability-related questions (to ensure that the candidate can perform the essential functions of the job with or without reasonable accommodations) and require medical examinations as long as this is done for all entering employees in the job category and the information is kept confidential. The job offer may be conditioned on the results of post-offer disability-related questions or medical examinations.
- Proceed with caution when inquiring about an applicant’s criminal record. In Connecticut, effective January 1, 2017, employers will be prohibited from inquiring about a prospective employee’s prior arrests, criminal charges or convictions on an initial employment application (unless the employer is required to do so under state or federal law). Although this does not prevent an employer from asking about an applicant’s criminal history during a subsequent interview, Connecticut law prohibits employers from requiring a prospective employee to disclose a prior arrest, criminal charge or conviction if the record has been erased. Similarly, in New York City, employers are prohibited from making an inquiry about an applicant’s pending arrest or criminal conviction record until after a conditional offer of employment is extended.
While the task may seem daunting, at the end of the day, good help really isn’t that hard to find if you know the right questions to ask — and the questions to avoid.
Glenn A. Duhl is a management-side employment and litigation lawyer at Siegel, O’Connor, O’Donnell & Beck, P.C. Please visit www.siegeloconnor.com for more information.
The information contained in this article is general in nature and offered for informational purposes only. It is not offered and should not be construed as legal advice.
(image courtesy of ideal.com)