Introduction: So Many Ways to Go Wrong
The Pre-Interview Process
The Post-Interview Process
The Hiring Decision
Conclusion: Be Prepared, Be Reasonable, Be Sure It’s Related to the Work at Hand
Introduction: So Many Ways to Go Wrong
The solicitation and evaluation of employment candidates and the decision-making that goes into the remainder of the hiring process present employers with an array of difficult issues. Finding an employee who provides the right fit is frequently a challenge, and the search for quality employees can be daunting. The law recognizes an employer’s right to seek, assess, and hire appropriate candidates. That right, however, is not unfettered. Employers must, for example, avoid illegal discrimination.
Discrimination can occur at any stage of the hiring process, including the initial application, the interview, the reference check or the ultimate decision whether to hire. Here is a general overview of important considerations for employers, informed by both federal and state law.
The Pre-Interview Process
Solicitation and application
There are many issues for an employer to consider during the pre-interview process, starting with how to solicit candidates. The solicitation should include basic information such as the job title, a brief description of the duties, the rate of pay and the anticipated hours during which the employee will be expected to work. Not surprisingly, improper advertisements for employment can lead to lawsuits. Employers should, as a general rule, avoid publishing or disseminating ads that suggest a preference or limitation based on the many protected classes such as race, color, national origin and citizenship, religion, sex, marital status, pregnancy, sexual orientation, disability, age (40 and older) or military status.
The employment application allows the employer to obtain information from the potential employee, and also provides an opportunity for the employer to further introduce itself and its business to potential employees. Even in those instances where employers receive unsolicited résumés from candidates, it is still advisable to require candidates for most positions to submit employment applications. The application begins the all-important documentation process, and ensures that the employer obtains relevant information regarding the candidate.
The application should identify the employment position for which the employer is seeking applicants. The employer may consider providing a brief description of the requisite skills. The employer may want to describe the hours and days of employment for the position to be filled, and may even consider asking a candidate about his or her wage or salary expectations.
The application should also ask about educational and professional information, including current and prior employers and their contact information, dates of employment, wages, supervisors’ names and titles, the candidate’s prior job responsibilities and titles, the reason the employee left the prior jobs, and the employee’s educational background, if appropriate. However, the employer should not ask about the dates on which the employee graduated from high school or college, as such questions may suggest discrimination against older applicants. Further, the employer should only ask about graduation or major course of study if it is somehow related to the job.
Finally, an employer may also want to ask about special training or skills that may be required for the job, as well as a statement that the applicant will be legally eligible for employment in this country at the time of hire.
There are additional, specific areas the employer must consider. For example, an employer can ask whether a candidate has ever pleaded guilty to or been convicted of a felony. However, the application must state that a "yes" answer will not, in and of itself, disqualify the candidate. An employer can ask about other crimes that may be related to job qualifications. For example, a grade school may ask a potential teacher about any convictions for crimes involving the victimization of children. The employer, however, cannot ask about prior arrests. Additionally, an employer can ask a candidate about service in the military if it relates to a qualification for employment. However, the employer cannot ask whether a candidate was honorably or dishonorably discharged, or served in a foreign military. Employers also cannot request a candidate’s military records.
Additional points to consider:
An employer can ask a candidate if they belong to organizations that are related to the job in question. However, the employer cannot ask about a candidate’s involvement in organizations that may disclose the candidate’s membership in a protected group.
An employer can also ask if a candidate would be willing to work overtime. An employer, however, should not ask why a candidate cannot work a required schedule, or if there are religious holidays which would prevent a candidate from working. Such questions could open the door to claims of religious discrimination.
An employer can ask for references. However, the employer must not ask for references that reveal the candidate’s membership in a particular protected group. For example, the employer should not ask for a reference from a priest or a rabbi.
An employer cannot ask for a photograph from a candidate who is only being considered for hiring. However, once a candidate is actually hired, the employer can obtain a photograph for purposes of identification.
It is also advisable for the application to include a statement of nondiscrimination, and indicate that the employer is an equal opportunity employer. Further, unless the employer intends to create a specific employment contract, all candidates should be reminded that anyone hired is an at-will employee. At-will employment means that the employer can fire the employee for any reason at any time, and that the employer is not required to provide notice.
The application should remind the candidate that the employer is not creating a contract of employment, nor is the employer providing any guarantee that the candidate will, in fact, be hired. The application should require the candidate to acknowledge that the information included is complete and accurate, and that the employer may take adverse action, including firing the employee, if it turns out that false information was provided. Finally, the application should include a section for candidates to sign acknowledging their understanding of these important points.
Pre-employment testing, including polygraphs
An employer can lawfully administer pre-employment tests to determine whether a candidate possesses abilities essential to the job. For example, an employer can administer a basic math or reading test for candidates who may be required to possess those skills during the course of their employment. However, such tests must be given to all candidates who seek the same position, and must accurately measure the specific ability.
As a general rule, polygraph exams are not permissible in the workplace either during the application process or after hire. Concerned that inaccurate lie detector test results could prejudice an honest candidate’s efforts to obtain employment, and that some employers could ask unnecessarily intrusive questions, Congress enacted the Employee Polygraph Protection Act of 1988, which requires employers to follow both state and federal laws concerning lie detector tests.
An employer must follow state law even if it is more stringent than federal law. There are, however, statutory exceptions for certain employers, including pharmaceutical manufacturers or distributors; alarm, security or armored transport companies; and governmental employers. But for those exceptional circumstances, an employer cannot require or even suggest that a candidate for employment take a lie detector test. Further, the employer cannot (1) obtain or ask about the results of a lie detector test taken by the candidate; (2) refuse to hire based on the results of such a test; (3) refuse to hire based on a candidate’s refusal to take a lie detector test; or (4) refuse to hire in retaliation for a candidate’s complaint against the employer for improperly using a lie detector test.
Courts are generally reluctant to micromanage an employer’s decision-making regarding specific candidates. Courts allow employers to make judgment calls, and consider the employer best able to determine whether a candidate is truly qualified for a given position. The courts do not want to restrict employers from using reasonable means and methods to attract and hire the best candidate for the job. Most employers include some form of interview as an employment prerequisite. Interviews can be extremely enlightening with regard to the employer’s overall assessment of a candidate. But they can also give rise to problematic issues if not conducted properly.
To ensure fairness and consistency, the employer may consider developing a format to be used for all interviews. The format should provide the interviewer with a road map to obtain all relevant information while avoiding potential problem areas. In addition to describing the job and its purpose, as well as the skills and knowledge required for the job, the employer should be prepared to ask questions to solicit relevant background and qualifications in a manner that avoids either overt or subtle discrimination. The employer must be prepared to listen carefully to a candidate’s answers, and ask appropriate follow-up questions.
The person who conducts the interview should be a trustworthy employee who is familiar with the issues discussed here. The interviewer must understand the potential problem areas and be capable of fully, accurately and carefully documenting all important information. The interviewer should be instructed to keep casual conversation to a minimum to avoid the risk of stumbling into potential areas of discrimination. Certain areas of inquiry must be completely avoided. In other areas, the interviewer’s manner and phrasing could trigger problems.
Among the most notable "red flag" issues and topics are:
An employer can ask about an employee’s age if the particular job carries legally mandated minimum age requirements. For example, an employer can and should ensure that a potential employee whose job would entail the sale of alcoholic beverages is at least 21 years old. In the absence of such legal requirements, an employer should not ask about the dates when a candidate attended grade school, high school or even college, as the courts may regard such questions as subtle evidence of age discrimination. Also, replacing a 50-year-old employee with a 25-year-old employee could be considered discrimination if there is no legitimate, bona fide reason for the replacement.
An employer can require an applicant to prove that he or she is eligible to legally work in America. The proof must be a form that would be accepted by U.S. Citizenship and Immigration Services. An employer can require the employee to provide original documentation, as opposed to copies, to verify authenticity. However, an employee can present a certified copy of a birth certificate. An employer cannot ask about an applicant’s nationality, or that of his relatives; about where an applicant or his relatives were born; or about any foreign addresses. An employer cannot ask about what other languages a candidate speaks, unless there is a legitimate employment reason. If an employer must ask about language abilities, the employer must not ask how or where the candidate acquired his or her ability to speak a foreign language.
The law presumes that "English-only" rules are illegal, such as requirements that employees speak only English while at work. An employer who requires that a candidate speak English must be able to demonstrate that this is because of a legitimate occupational qualification or business need. However, an employer cannot require an employee to speak only English at all times, such as during lunchtime or while on break. Some legitimate reasons for requiring a candidate to be fluent in English include communication with customers, co-workers or a supervisor who only speaks English, or the ability to communicate in emergency situations.
An interviewer cannot ask about a candidate’s race or color, or racial/familial background. An employer should not ask specific questions of certain races or colors but not others. The employer should ensure that it asks the same types of questions of all potential employees.
An employer cannot ask about a candidate’s gender, or pose questions that may only apply to one gender. For example, the employer should not ask if the candidate plans on having children, even if this question is asked of all candidates. A court may consider such a question as an attempt to avoid hiring women. An employer cannot inquire about a candidate’s plans for child care.
An employer must be careful not to have requirements that are unrelated to the job. For example, an employer should avoid imposing height requirements unrelated to job performance, as such a requirement could potentially exclude women.
The employer should not ask about a candidate’s religious beliefs, whether or where the candidate attends church, or about any religious customs. The employer must not tell the candidate about the employer’s religious beliefs or affiliations. Courts may consider such discussions as an attempt to pressure or unduly influence a candidate when there is no legitimate employment reason for the employer to disclose such information.
An employer can ask whether a candidate is capable of performing tasks that are required for the job. The employer, however, should carefully phrase the question to avoid potential problems. For example, the employer may properly explain that a job may require lifting boxes weighing 25 pounds, and then ask if an employee is able to meet that requirement. However, it is not appropriate to simply ask an employee if he or she is disabled, and then attempt to justify that question by explaining that the employer was attempting to elicit information regarding the candidate’s ability to lift heavy boxes.
The employer must avoid questions that could be misconstrued as inquiring about non-job-related disabilities, or that could force an applicant to reveal any such disabilities. The employer must ask whether a candidate has a history of filing workers’ compensation claims, or ask about any current or prior medical conditions.
The Post-Interview Process
Once the interview is complete, the employer may consider taking additional steps to assess a candidate. A thorough background check enables an employer to determine whether a candidate was truthful during the interview process and is the best-qualified applicant for the job. A background check also enables an employer to determine whether a candidate poses a safety threat to customers or other employees. The employer’s failure to conduct a proper background check could later subject the employer to liability for the employee’s conduct.
When investigating an employee’s background, the employer should follow these guidelines:
Use investigation tools that are reasonable and relevant to the job at issue.
Subject all candidates to the same type or form of investigation.
Ensure that the person who conducts the background investigation has appropriate training and/or experience (for example, in detective or investigative service).
Comply with any relevant laws, such as Title VII of the federal Civil Rights Act, the Fair Credit Reporting Act or the Americans With Disabilities Act.
When feasible, use a third-party reporting agency to conduct the background check. This may reduce the employer’s potential liability.
An employer should conduct a background check of a candidate’s credit only if there is a close relationship between the candidate’s credit information and job performance. However, the employer should be careful not to reject a candidate solely based on a poor credit rating, as this could be viewed as a pretext for discrimination against certain protected groups. Employers should familiarize themselves with the Fair Credit Reporting Act, a federal law that promotes fairness, accuracy and privacy of information obtained from consumer reporting agencies. The act requires that:
An applicant must be told if information is used against him or her, and is entitled to the name and contact information for the person providing the information.
An applicant has a right to know what information is kept in the file of a consumer reporting agency.
An applicant can dispute inaccurate or incomplete information.
The consumer reporting agency can only provide information to an entity or person who has a legitimate need.
Generally, an employer may search a candidate’s criminal background for the prior seven years. A hiring policy that excludes applicants with criminal convictions must distinguish between applicants who pose an unacceptable level of risk and those who do not. The hiring policy must be consistent with the needs of the business to withstand a legal challenge. Before deciding not to hire an applicant based on criminal background, the employer should carefully consider the nature and number of convictions, the candidate’s efforts at rehabilitation and whether the candidate is otherwise qualified for the job.
An employer can verify information regarding a candidate from prior employers, and can confirm information such as dates of employment, salary, jobs held and responsibilities, and competency regarding job-related skills such as dependability, judgment or attendance. The employer should consider obtaining a release from a candidate before contacting prior employers, although this is not a guaranteed protection from litigation. The release should explain that the employer may learn information regarding the candidate that is not positive and that anyone who makes such a statement is not subject to any legal liability. When contacting references, the employer should contact a person with actual knowledge of the candidate’s performance at a prior job (such as a supervisor or co-worker) as opposed to simply contacting the human resources department. When contacting a reference, the employer should:
•Verify information in the employment application.
•Ask questions about work performance (i.e., job performance, strengths and weaknesses, reason for leaving employment).
•Avoid questions that may involve a candidate’s status in a protected class.
•Document all responses, even neutral ones.
The Hiring Decision
The employer must be prepared to articulate reasonably specific facts to explain its decision to hire or not hire a candidate, and should have its reasons well documented. An employer may have a subjective reason for not hiring a candidate (i.e., poor attitude during interview). Courts agree that the employer is more capable of assessing the significance of differences between candidates and their qualifications, and will allow employers leeway to make judgment calls. An employer can refuse to hire a person for a good reason, a bad reason or even a reason based on erroneous facts, so long as the employer does not unlawfully discriminate. It is absolutely essential, therefore, that an employer avoids the potential discrimination pitfalls discussed above.
The pre-selection of a candidate who is less qualified than other candidates does not necessarily mean that the employer has engaged in discrimination. The courts recognize that an employer may want to hire relatives or friends of friends, and such hiring practices are not illegal per se so long as the employer does not discriminate against protected groups.
Finally, unless the employer specifically intends the formation of an employment contract, it is always advisable for the employer to take steps to avoid misunderstandings with the employee that could lead to claims for breach of an employment contract. The employer should:
Advise the candidate, in the application and during the interview itself, that the position is for at-will employment, and explain what this means.
Indicate that the employment is at will when a letter offering employment is issued.
Include a statement in the employee handbook that the employment is at will, and that the employee should not interpret an offer as a contract of employment.
Provide employees with an occasional reminder, preferably in writing, that the employment is at will.
Ensure that interviewers avoid stating or suggesting that the employment is anything other than at will.
Conclusion: Be Prepared, Be Reasonable, Be Sure It’s Related to the Work at Hand
Poor preparation for the interview and hiring process may not only lead to bad hiring decisions, but also costly and damaging litigation. Employers must have a thorough working knowledge of what they legally can and cannot do throughout the process. During each step, the principal guideposts are reasonableness and relatedness to the work at issue.
Using common sense will go a long way, but might not always provide ready answers. When in doubt, the employer should consult its in-house legal team or outside counsel. The employer should also document the interview and hiring process as thoroughly and accurately as possible. While the vast majority of hiring (and non-hiring) decisions do not result in legal challenges, the prudent employer will be prepared to successfully defend against those that do.
The author acknowledges the following sources used in the preparation of this article: Texas and Federal Employment Law Manual, Chapters 4-6 and 11 (Jackson Lewis, 2005); Employment Law: A State-By-State Compendium (DRI, 2006); and 96 Great Interview Questions to Ask Before You Hire (AMACOM, 1996).