What Questions Can You Ask Your Job Applicants?

BY: ON WEDNESDAY, FEBRUARY 27, 2013

Recent economic troubles and a growing pool of talented graduates have led to increased competition for fewer positions. As an employer, finding the right candidate for open positions has never been so challenging, and the pressure is increasingly on recruiters to streamline and speed up a complicated process. Be wary, though, of overstepping your boundaries.

I recently wrote about employers demanding employees’ Facebook passwords, a worrying development and a legally questionable infringement of privacy – but the issue goes much further. The fact is that it is illegal for potential employers to request certain information from an applicant, or to require them to share personal details that might indicate a bias or unfair prejudice. It’s important to know what you can ask an applicant since overstepping the boundaries can very quickly land you in legal trouble. 

The short answer is that you should avoid any questions relating to race, religion, sexuality, ethnicity, or the applicant’s life outside of work. In practice, this includes questions such as ‘Where did you learn [foreign language]?’ and ‘Would you be able to work [religious holiday]?’ The law is clear that if your question requires the applicant to share information which might give you an impression about their personal life – their family, their ancestry, their citizenship, or a disability, for example – then that question is illegal. So, the following information is all to be avoided:

  • Whether they rent / information about a foreign address
  • Their age, or to request a birth certificate
  • Country of birth or family’s (grandparents, etc.) place of birth
  • Arrests not leading to conviction
  • Disabilities
  • Racial or religious affiliation of school or college
  • Relationships (spouse, etc)
  • Gender
  • Military records, or military service outside the U.S.

None of this is to say that you can’t ask reasonable questions relating to work. While you can’t ask an applicant’s age or whether their school was religious, you are free to ask what school they attended, and what qualifications they have. In the same way, you can ask whether they have been convicted of a crime. And, while you cannot ask if they’re a citizen before you hire them, you may ask if they have the legal right to work in the U.S.

A lot of these may seem like common sense but the devil can be in the details. Small talk about whether they have children or their spouse’s job is technically illegal: both questions are considered unnecessary and should never appear on application forms. And here we come back to the more recent problem; in-person interviews can sometimes smudge the distinction between valid and legal questions, and intrusive and illegal action. Social media and Facebook may seem like the perfect way to judge whether an employee is suitable for a position, but if information learned there – relationship status, country of birth, etc. – affects the hiring process, then the law would seem to have been broken. Hiring must, at its heart, be fair, and allow the most qualified candidate to rise to the top.

About the Author

Glenn Phillips
Glenn Phillips owns and operates Phillips Law Firm in Washington.  With almost 30 years of experience, Mr. Phillips specializes in the litigation of personal injury, product liability, disability, employee rights, and defective drug/device cases.
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