What Can I Ask An Applicant?

© Elizabeth Zink-Pearson

Hiring employees is no longer a simple process of elimination or selection of the best applicant. In today’s legal climate, employers need to be equally concerned about what they ask applicants as well as what they fail to ask. The prudent employer should establish a well defined procedure for employee selection that includes steps for checking references and other qualifications and reflects the restrictions imposed by both state and federal law.

Hiring An Employee No Longer Means Fitting the Applicant into a Strictly Defined Position.

Employment applications and interviews are the primary methods of screening and eliminating unqualified or ill-suited persons from consideration for a position and as such can run afoul of the various state and federal anti-discrimination laws. Types of questions that have been found to unfairly discriminate include questions concerning arrests and conviction records. Additional problem areas for employment inquiries include age, sex or marital status, physical or emotional capacity, and even religious affiliation. With all these restrictions, how can an employer legally screen applicants for employment?

The anti-discrimination laws presume that all the answers to pre-employment questions will be used in making a hiring decision. In general, these law prohibit the use of job criteria or pre-employment questioning that disproportionally disqualify minorities, members of one sex, older persons, or disabled persons. Hiring employees no longer means fitting the employee into a strictly defined position. Rather employers must maintain a degree of flexibility in hiring, a willingness to accommodate individual applicants’ limitations, either real or “perceived” and either physical or emotional.

Hiring guidelines published by the Equal Employment Opportunity Commission, the EEOC, suggests establishing a job description for each position that outlines the primary responsibilities for the job, technically referred to as the “essential functions.” Applicants should be reviewed for qualifications that meet these essential functions. Any job criteria that could screen an applicant from eligibility employees must be directly “job-related” or justified as a business-necessity. Examples of necessary job related criteria include the ability to type or use a computer for a secretary position or a truck driver’s ability to drive an eighteen-wheel vehicle for a prolonged period. Example of criteria necessary for businesses are such things as licensor requirements for nurses or state and/or federal law requirements for criminal record checks or drug testing for certain employees.

In both the application and interview process, questions should reflect only the established job requirements, such as the working hours, job criteria, or the identified essential functions. General questions concerning the applicant’s age, marital status, physical health, religion or ethnic background should be avoided unless the subject matter of the question can be established as a necessary qualification.

Specific questions concerning an applicant’s ability to do a particular function should be posed only after an initial offer of employment is made, and, then the employer must be prepared to accommodate any disability, religious need, or other limitation. The overriding duty to accommodate such limitations is lifted only if the employer can prove that the accommodation would cause the company “undue hardship.”

Employers Need to Prepare Hiring Procedures & Policies Well in Advance of Placing a Want-Ad.

On the other side of the picture, employers should ask and verify several items in the application process. Many states require criminal record verification of employees. Although the process may be costly and impose additional paperwork, employers who have people in positions of confidence, or going into clients’ homes, or employees who must be bonded likely need to obtain this information. The business necessity in such cases is demonstrated by the criminal case example of the home health aide. Any request for criminal convictions information should be accompanied by a statement that a record will no necessarily bar employment and that factors such as the seriousness and nature of the crime, along with the time of the offense will be considered and evaluated.

Also, there are several screening procedures that employers can and should conduct. First, employers should conduct reference checks and ask applicants for an explanation of any “unemployed” time. Second, applications and any subsequent employment questionnaires should establish an enforceable policy that any false information is not only grounds for disqualification for a position, but, also cause for discharge if discovered after a hiring. Also, employers can require verification of basic information, perhaps with a drivers license or professional license or certification, or a follow-up telephone call. Finally, companies should establish a procedure checking list to assure that each of these procedures are followed, and, include this information in the applicant’s file.

In the end, to avoid legal liabilities in the screening and hiring of employees, it has become very important for employers to prepare hiring procedures and policies well in advance of placing the want-ad. It is certainly more costly in time, and in money, to face a lawsuit down the road either from some disgruntled applicant who did not get hired, or from a client injured in some way by the one who did.