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Avoid Legal Risks When Interviewing New Hires

Written by  Claudia St. John, President of Affinity HR Group LLC

 Get Hired 517

From a legal compliance standpoint, interviewing and screening applicants is a time of high risk for your company. Most employers know that it is illegal to discriminate against a candidate in the hiring process based on nationality, religion, age, marital or family status, gender, health and physical ability, military status and, in some locations, sexual identity and criminal background. What they don’t realize is that many seemingly benign questions, either on the employment application or in the interview, can lead a candidate (or court of law) to conclude that you are doing just that—discriminating against a protected class.

Employment Application
We recommend that you require candidates to fill out a formal, written employment application because you can use that to have the applicant attest that all information he or she provides is correct, whereas simply collecting a resume does not afford you that opportunity. On the application, its best to keep it simple and ask only those questions that are absolutely necessary. For example, yes, you’ll need to know how to contact the employee, but you don’t need to know whether the applicant rents or own his own house. And, indeed, that type of question can be construed to show you discriminating against a protected class.

First, let’s review what should be on your employment application. It should:

• Include an EEO statement up front stating that your company conforms to local, state and federal laws and does not discriminate.
• Ask for name, address and contact information.
• Ask specifically if applicant is a citizen or legally authorized to work in the US and notify the applicant that documentation will be required if hired.
• Ask if the applicant is able to perform essential functions of the job.
• Ask for a list of past employers and provide a check box if employer can be contacted.
• Ask the applicant to list education with degrees earned a yes/no to graduation. Do not ask for dates.
• Not ask any criminal background questions. These you can ask later in the process or once the applicant is offered a position.
• Ask for references, preferably professional.
• Have an employment-at-will statement.
• Require all applicants to sign that all information is true and accurate so that you can hold them accountable for any false information provided.

Before you go beyond these categories, look critically at whether the information truly belongs on the application or could instead be obtained at a later stage in the hiring process. Deferring whatever information you can to that later stage can help you avoid charges of discrimination by unsuccessful applicants.

Beyond these tricky areas of inquiry, there are many creative, insightful questions you should consider during an interview. And, whenever possible, we encourage you to ask them in a “behavioral interview” format, which is simply posing the question in the following format: “Tell me about a time when (question).” This will reveal the most detail about the candidates past experiences, which are always the best indication of future behavior.

Criminal Background Check
You will want to run a criminal background check on your candidate, but given the myriad of “ban the box” laws out there on the state and local level, it’s best to run the check—which will require a social security number, date of birth, maiden name and other personal information—once you have decided to hire the individual, and not before. We recommend that you extend an employment offer that is contingent upon a clean criminal background check. And if you thinking about running a credit check, think again—federal law prohibits employers from running a credit check, except in certain instances.

Of course, you will need to collect birth date, social security numbers, marital status and dependent information for payroll and benefit selections, and you will need to review documentation verifying the candidate’s right to work in the United States. But you should collect this information only after the candidate has been hired.

Yes, it’s a challenge—you are trying to learn as much about the candidate as possible, but you don’t want to go wading into areas of inquiry that could be interpreted as discriminatory. Our best advice is to plan your process, clean up your application and prepare your questions in advance.

Claudia St. John is president of Affinity HR Group, LLC, BSCAI’s affiliated human resources partner. Affinity HR Group specializes in providing human resources assistance to associations such as BSCAI and their member companies. To learn more, visit www.affinityhrgroup.com.



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