The do’s and don’ts of interview questions

What you should—and shouldn’t—talk about or ask when looking for a job.

By Bruce Armon & Ruth Rauls | Legal Matters | Summer 2020

 

Employers and employees are generally familiar with many of the basic interview do’s and don’ts. But in addition to federal protections, multiple states have statutes that must also be followed, in addition to state and local laws.

Before going on an interview, brush up on the sensitive topics of which both candidates and employers should be aware.

Background checks and prior convictions

Although background checks have become a normal part of hiring decisions, there are a myriad of state and federal laws that impact how and when these reports can be run, what information an employer can consider, and when a potential job candidate can be asked about their criminal record. Generally, the federal law that applies to the majority of background checks is the Fair Credit Reporting Act (FCRA). FCRA contains certain procedural requirements with respect to disclosure, authorization and notice to a job applicant.

However, based on the significant number of states that have passed “ban the box” laws, FCRA is not the end of this discussion—it is only the beginning.

Ban the box laws include a prohibition of including a box on employment applications regarding prior criminal history or convictions. These laws also generally prohibit employers from verbally asking job applicants about their criminal histories during the initial employment application process.

Generally, questions about criminal history or prior convictions should be avoided unless there is a connection between the conviction and the position, or if there is a specific statute or regulation permitting such questions based on the position. As a practical matter, a prospective employer can review the National Practitioner Data Bank, the records of the candidate’s state medical licensing board, a professional credentialing organization and other internet searches to gather as much publicly available information as possible.

Salary history

Multiple states now ban employers from inquiring about an applicant’s salary history. Some states have enacted these laws in an effort to eliminate at least one contributing factor to gender pay disparity. Thus, interview and screening practices need to be adjusted or revised to focus on skill set over salary.

In states with these laws, asking questions about an applicant’s desired salary is OK, but those asking about prior salary are not. To determine what can and cannot be asked about salary history in an interview, employers and candidates alike should understand their state’s laws.

Citizenship and national origin

Generally, there is an understanding that questions regarding an applicant’s citizenship or national origin are off limits in the interview process. However, there are questions that may appear innocuous that are in fact problematic for an employer.

Questions that run afoul of laws include those about an applicant’s birthplace, the birthplace of family members, and asking whether the applicant has the legal right to work in the U.S. with an emphasis on a green card or visa.

Instead, questions, if any, should be limited to “are you legally authorized to work in the United States.” If foreign language skills are relevant to the position, it would be permissible to inquire about the applicant’s ability to read, speak or write a foreign language. However, general inquiries regarding how a person learned to speak a foreign language could prove problematic.

Sexual orientation

Sexual orientation has been front and center in many employment-related litigations over the past several years. In order to avoid any issues on this topic, an interviewer should avoid direct questions on this topic as well as questions designed to detect a person’s sexual orientation or gender identity. Those kinds of questions include those about marital status, spouse’s name or inquiries about household members.

There is a difference between being friendly and trying to understand a candidate’s personal life and crossing the line into subjects or areas that have no relevance to a prospective employee’s ability to do a job.

Age

Most employers and employees understand that questions regarding a candidate’s age are off limits in the interview process. However, much like the discussion on citizenship and national origin, questions that try to get this information indirectly are still prohibited.

For example, asking during an interview what year an applicant graduated high school or when they first started working should be avoided.

The laws governing the interview process continue to change. Employers and candidates both need to stay apprised of what’s appropriate and what’s not throughout the interview process.

Bruce Armon is chair of Saul Ewing Arnstein and Lehr’s health care group. Ruth Rauls is a member of the Saul Ewing Arnstein and Lehr’s labor and employment practice.

 

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