HR Jetpack


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  • Course: Employment Law 101
  • Module: Hiring Process
  • Lesson Type: Video
  • Lesson Duration: 11:05

Lesson Content

OK, we've been talking about the hiring process and we've discussed application pitfalls. We're now going to start talking about the interview process.

Now it's important to understand that in the hiring process both through applications and interviews, you're collecting information. And what and how you collect that information may be problematic or creates liability so there is some redundancy in that we're going to talk about a lot of the same issues because you're collecting the same information but maybe in more than one fashion. The bottom line is, these are all things that need to be thought through and considered carefully. For instance, with regards to age discrimination, instead of asking when a candidate graduated or if they intend on retiring, do this, ask them to supply the train scripts for their education and make sure that they're old enough to do the work. These types of questions where you're asking for transcripts or you're verifying that they are old enough to perform the work under the law are job related and don't pertain to their graduation in which you can infer a year and their age. So it's just a matter of thinking through and crafting the information properly to make sure what you're collecting is truly job related.

Here's another example, disability. Now it's critical that you understand that this ability and religious discrimination issues or topics need to be accommodated. Instead of asking whether they have a disability or whether the candidate has filed for workers' compensation in the past or whether directly they have a history of drug or alcohol issues. Instead ask if they can do the duties of the job and they need to be able to do it with or without an accommodation. As a business, you have an affirmative duty under the law, federal law and many, many state laws, to provide accommodations to individuals with disabilities. You also have one to accommodate certain religious practices but here we're going to stick to the disability analysis. So it's very important that you understand and it's a critical, critical point that if a worker has an obvious disability or they've revealed a disability in their discussions with you through self-notice, self notification, that you can ask that person whether or not they can perform the job duties but it needs to be with or without an accommodation so if a person could perform the job duties, if they had a certain piece of equipment that you could reasonably provide then arguably that shouldn't be the reason they do not get the position.

So looking at disability discrimination in the interview process, it's very important that we focus not on whether or not that candidate has a disability, instead we want to focus on whether or not that candidate can perform the essential functions of the job with or without an accommodation. The goal here is to put these people to work if they truly can do the job and they are otherwise qualified and that's, that's really important for employers to understand.

Additionally, and this just deals with sort of common sense, you're going to be face to face with most candidates in the interview process so things like race are fairly evident. We don't want to focus on that as discussion or conversation because, if you do, the applicant very well may perceive that your questions are because you're preoccupied with race, race analysis. And that's not something it's going to bode well should a lawsuit ensue.

In addition, let's talk more about religious discrimination. Now I spoke to you about disability accommodation. You also have an accommodation requirement with regards to religion. So instead of asking about certain religious holidays that the candidate may need to be off or, generally, what type of activities they participate in, ask instead what sort of professional associations they’re members of. Professional associations, generally, wouldn’t be a church and, you know, therefore, is certainly potentially relevant to the position being applied for. So, it’s just a matter of thinking it through. You may get people that answer with regards to professional associations things that are involved with their religion but that's not because you asked about their religion because you asked about professional associations and there is a distinction there.

Appearance. Now it's very, very important and many, many businesses have appearance guidelines dress codes if you will. And there's nothing wrong with that you. If you want to portray a certain image for your business, as long as you know, it's it's socially acceptable, that's fine. But you need to be aware that there are variations with regards to religious practices and religious codes in terms of a person of a specific church's faith or their cultural variations and be very cognizant of those things because those are areas in which liability can occur. For instance, if you have a candidate that comes to an interview and they have a headscarf. Is there a legitimate business reason for you to require them not to wear the headscarf and there may or may not be. If you're not sure, then get an, get an attorney involved, do the analysis, do a risk assessment and decide. But the bottom line is, that a person's appearance, if it's related to religion, cannot be the reason that you choose not to hire this person and that's very critical for you to recognize.

Ok, another aspect of this is marital status or sex so instead of asking things like, are you married or do you plan to start a family or do you have children, ask if there are other names that you should look for in a background check, can you work over time without notice, are you able to travel frequently or/and work weekends or evenings. All of the questions that I am recommending you ask are work related and important to the job. And whether or not they're married or want to start a family, is not relevant to the job. What’s relevant to the job, is it they can be there when required and that they can meet the needs of the business from a performance perspective. So that's what you want to focus your interview questioning on.

National origin and citizenship. Instead of asking if an individual applicant is a citizen, where they're from in terms of a country or their accent or what nationality their name is, you might instead say if you're hired, can you provide documentation to demonstrate that you are eligible to work in the United States because that's what's important for the functions of the job, not their heritage or their national origin or the, you know, source of a particular accent. So, make sure that you think through questioning in this respect, all right.

The military. Instead of asking about military discharge or whether you need to miss work to perform a military duty, ask about the experiences gained in the military that pertain to the job, that are relevant to the position that the applicant is applying for. That is ultimately what you want to know not so much the status of a particular discharge and I'll tell you why. If the status was that they were discharged because of medical reason then potentially that type of inquiry can infer that you were looking for a medical reason not to accept this applicant and so that's, that's very, very important.

OK arrests and convictions. Now there's a distinction here. Arresting someone and being convicted are two very different things. Instead of asking if you've been arrested, ask if you've been convicted because if you are not hiring somebody because they’ve been arrest that's probably going to get you in legal problems. Being arrested doesn't mean you're guilty of anything. It means that somebody believed there was good cause but it does not mean that your of guilt, that you shouldn't be penalized. If you've been convicted, however, then a jury of your peers or a judge has deemed you guilty of illegal conduct and that's a different question. So be very careful to make the distinction and I'll tell you that there's a strong effort to even minimize the consideration of convictions in the workplace. As a society, we want to incorporate people that have made mistakes in the past back into society and part of that is giving them the ability to get a job. So if a conviction and a person who was convicted has paid their debt to society then the thought process is unless that conviction is directly relevant to the job, it shouldn’t be part of the query. A number of municipalities and cities and a couple of states now, have legislation that’s called, “Ban the Box”, that deals with the idea of taking off the convictions check box on an application because unless it's pertinent to the position many people feel like it shouldn’t be considered and the candidate should be given consideration only for his ability or her to the fulfill the obligations of the position. Now clearly if it's a position of trust and the person was convicted for some ethical, you know, fraudulent violation of trust, it's relevant. But if it's to do a warehouse position where you're not going to be dealing with, you know, money or maybe property, that can be taken easily then arguably it's not relevant and so those are things to be thinking about.

Mark Addington


Mark Addington

Mark A. Addington, Esq. advises and advocates on behalf of businesses concerning Labor & Employment Law, Business Regulatory Compliance, Restrictive Covenants (Non-Competition, Non-Solicitation, and Confidentiality), Wage & Hour, Privacy, Technology,...

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