The Dangers of Common Sense: Interviewing and Hiring

The Dangers of Common Sense: Interviewing and Hiring

We've noticed an uptick, however slight, in interviewing and hiring activity among our clients. That's a good sign, to be sure. But there's a hidden cloud wrapped around that silver lining: many of the laws that regulate interviewing and hiring make no business sense and, in fact, are wholly counterintuitive. The upshot is that businesses involved in seemingly ordinary interviewing and hiring activities can unwittingly incur substantial liabilities.

This would, therefore, be a good time to review how your common sense can get you in trouble when you're seeking to hire employees. Consider this: how likely is it that you or others in your organization would ask the following or similar questions during an interview with an applicant, either to gather information needed for the hiring decision, or just to break the ice and keep the conversation going?

This is a position that requires regular lifting. Have you had prior back or other physical problems?

It would be difficult for us to lose you for an extended time within the next year. Are you planning on starting a family in that time frame?

That's a beautiful accent. Where are you originally from?

I noticed you were limping. Looks painful. Anything serious?

What year did you graduate from high school?

Do you have child care responsibilities that could prevent you from working nights and weekends if needed?

Have you ever filed a workers compensation claim?

Attendance is really important around here. How many sick days did you take off last year?

Just out of curiosity - is that an Italian name? I've always loved Italian cooking.

Have you ever been convicted of a crime?

Did you ever bring a claim against a prior employer for discrimination or harassment?

We've always been a non-union company and would like to stay that way. Do you have any problems with that?

You'll be reporting to people much younger than you. Will that be a problem?

Why wouldn't you ask these kinds of questions - or put some of them on your application form so you could get the answers in writing? In a job that requires physical activity, the applicant's history of physical problems is fair game, right? Everyone is concerned about absenteeism, so why not ask about an applicant's prior work attendance record, and the kinds of circumstances that could lead to future absenteeism? Maybe you don't want a convicted felon in your employ - aren't you entitled to ask for that information? And the rest of it - it's just small talk. Could it possibly be of legal significance?

Put your common sense on hold. Each of these questions arms an applicant with a potentially lucrative claim that your failure to hire him or her violated employment laws.

Questions about physical problems raise a maelstrom of ADA issues. Your inquiries at the pre-offer stage should be limited to whether the applicant can perform the essential functions of the job with or without a reasonable accommodation. Questions about future pregnancy and child care plans are often viewed as serving a hidden agenda that discriminates against women (as opposed to asking, "Is there anything that might interfere with your ability to work 40 hours a week over the next year?"). In the eyes of the law, there's no reason to ask questions that would reveal or pertain to an applicant's age, race or nationality unless you harbor an age, race or nationality bias - it's an employment interview, not a cocktail party conversation, and courts will often presume that if it wasn't pertinent to your employment decisions you would not have brought it up. Numerous statutes limit inquiries into an applicant's criminal record. And questions on union sentiments and prior litigation history - big, big problem.

Is there a solution? Here's where you need to focus:

• Review your employment application forms for legal "smoking guns";
• Create a written employment interview instruction sheet and checklist for those who do the interviewing. It is very important that each interview follow the same pattern;
• Train those who do the interviewing in the do's and don'ts, and in documentation methods that will help you fend off unfounded accusations of wrongdoing. Monitor their compliance;
• Limit participation in the interview process to those who have been trained;
• Consider creating job descriptions that will define the positions for which employees are sought.

Your common sense can be dangerous. Let us know if we can help.