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They seem like friendly, harmless queries, but they can land you in a serious legal tar pit. Here's how to learn safely what you need to know.
With success come headaches. More employees, for example. The more employees you have, the more responsibility for you and the more potential legal land mines. In this article, I’ll focus on the first of the employee-related mine fields you have to cross—the new-hire interview. Along with the obvious no-nos, there are a number of seemingly innocuous topics you should avoid in job interviews. Some of them are things you might ask of a casual acquaintance in other circumstances, and no one would mind. But remember: In the eyes of the law, employment isn't a casual relationship, and you as an employer have to use some caution. Best to stay away from the following:
While you might think an applicant would be glad to hear they look young, the fact is, age-related questions are almost never appropriate. Federal law flatly forbids discrimination against people over 40 in hiring. A few age-related questions are okay: Asking if a candidate can show proof of age to work (“Are you over 18?”) is generally OK. Also, in the few industries where there is a minimum or maximum age, questions (framed properly) are generally appropriate. But unless you're starting up a bar, airline, or bus service, stay away from the age question.
Asking about a citizenship or birth country can imply discrimination on the basis of national origin—and that's illegal. However, Federal law does require you to verify legal status and right to work. You should ask if the applicant has a legal right to work in the U.S, and explain that they will have to provide verification if hired.
You can’t ask about a person’s religion or what clubs they belong to, but you generally can ask about availability to work. If your business requires weekend workers, then you need to inform the applicant that weekend work or travel could be a regular part of the job. This can be a good time to add that the company does make reasonable exceptions to allow for an individual to exercise their religious beliefs. If you are running a manufacturing plant and seniority is how people pick shifts, the new guy might not be able to get weekends off. Same goes for 24-7 customer service. Also, with some jobs, you may need your new hire to travel regularly and meet clients. All of these things might make it legitimately tough for you to hire someone that has an inflexible work schedule.
All too often, the hidden purpose of these “family” inquiries is to dig into what some believe is a common source of absenteeism—the need to take care of young or old or sick family members. If you expect that you may need to ask the employee to relocate or travel frequently, or if a set schedule is important (think customer service hours), then you can ask about the applicant's willingness to comply with those duties. But be direct. Don't sidle into it with the marriage question.
This one is a two-fer. Not only do you hit on the family situation above, but what if the male applicant IS married—but not to a woman (or vice versa)? Even though there the federal government doesn't prohibit private employment discrimination based on sexual orientation, many states, like California, do. Regardless of the law, in my opinion, there is really no good reason to ask (even accidentally) about sexual orientation.
Questions about disability, health or worker’s compensation history are unlawful when they imply a disability-based limitation. Any pre-employment inquiry which would cause an applicant to disclose a disability is against the law, so avoid this line of questioning. If there's any doubt that the applicant is healthy enough for the job, you can ask about his or her ability to perform certain functions. In certain cases, you can even test applicants (as long as you test all applicants) to ensure they can perform essential job functions.
Be careful here. Losing a valuable employee due to a recall of reservists can be a blow, but you cannot discriminate based on a person’s military service. While we're at it, you can’t even ask what type of military discharged the candidate. You can ask about potential upcoming plans that might cause them to be away from work.
There are many jobs where a minimum height is essential, or where the employee would have to regularly lift heavy objects. Instead of asking questions about height, weight or other potentially embarrassing topics, just ask if the applicant can perform the job. These are just a few common issues that might arise in the employment application and interview context. Applications, testing, postings and hiring practices need to become a core competency for any workplace that is looking to hire. Researching best practices now can save you a lot of headache—and maybe even a lawsuit—later.
Author: Chas Rampenthal
Chas Rampenthal is General Counsel and Vice President of Product Development at LegalZoom. He's also a former talk radio host (KTLK AM 1150 at ClearChannel) and an entrepreneur himself, as the founder of LegalEndeavor. He is licensed to practice law in Massachusetts and California.