WHAT CAN I ASK?
 Hiring Interviews FAQ

1. Who should do the interviewing?
2. What information should the interviewers have?
3. What information should be included in the job application?
4. Can the interviewers ask about what job applicants state in their respective job applications?
5. In general, what can we ask applicants about?
6. What can we ask job applicants about their family status which will avoid the potentially discriminatory areas of sex, marital status, and children?
7. What can we ask job applicants about their country of origin?
8. What can we ask job applicants about whether they have a disability which will affect their ability to perform the job?
9. What can we ask job applicants about their age?
10. What can we ask job applicants about whether they have been convicted of a crime?
11. What can we ask job applicants about their personality?
12. What can we ask job applicants about their knowledge of our business?
13. What can we ask job applicants about their health or their willingness to take a medical examination?


 

Given the explosion of federal and state laws, many employers are confused about what they can and can not ask job applicants. This seeks to identify safe questions and to warn about some potentially dangerous questions.

1. Who should do the interviewing?

I recommend that the interview be done by two persons who have at least some knowledge and training about what are and are not appropriate questions and who are familiar with the requirements of the job for which the applicants are being interviewed. This approach provides a witness if any dispute later arises with the applicant about what was said.

2. What information should the interviewers have?

Besides having some knowledge of what are and are not appropriate questions, the interviewers should have a copy of each of the applicants’ job applications and a copy of the job description that the applicants are applying for so that background and job related questions can be asked.

3. What information should be included in the job application?

I recommend that the job application asks for at least the following: (1) past employment, (2) reasons for leaving prior employments, (3) name of prior immediate supervisors, (4) education, (5) non-expunged convictions, (6) releases to be signed for getting verification of convictions, education, prior employment, and references, (7) fair credit reporting act notification and release to be signed, and (8) the applicant swear or attest to the application.

4. Can the interviewers ask about what job applicants state in their respective job applications?

Generally speaking, yes, provided that you do not go into potentially discriminatory areas. In particular, I suggest making sure you know about: any gaps in applicants’ employment history; how quickly the applicants move from job to job; the applicants’ prior supervisors, their current locations, and how to get hold of the supervisors; why the applicants left prior jobs; why the applicants want to leave their current position; and why the applicants want a job with you.

5. In general, what can we ask applicants about?

You can ask applicants about their skills and qualifications for the job opening in question. Among other things, such questions might include: asking applicants how much experience they have or asking applicants what they can tell you about themselves.

6. What can we ask job applicants about their family status which will avoid the potentially discriminatory areas of sex, marital status, and children?

If you are concerned about whether the applicant will be available to perform the job because of potential family responsibilities, what about asking:

"Do you have any responsibilities that conflict with job attendance or travel requirements?"

Or in a more indirect way that might get at how hard each applicant is willing to work, you could consider asking applicants:

"How many hours a week do you need to get your job done?"

7. What can we ask job applicants about their country of origin?

 If you are concerned about whether the applicant is a United States citizen or an illegal foreign immigrant, what about asking:

"Can you show proof of your eligibility to work in the United States?"

8. What can we ask job applicants about whether they have a disability which will affect their ability to perform the job?

If you are interested in their ability to perform the job, what about asking:

"Are you able to perform the essential functions of this job with or without reasonable accommodation?"

Under the EEOC guidelines, any inquiry likely to elicit information about a disability is prohibited; however, assessing an applicant’s ability to perform specific job functions is acceptable.

Some illustrative questions that the EEOC says are not disability-related and are thus acceptable at the pre-offer stage (assuming that they’re job-related) are:

"Can you maneuver through four-foot diameter underground sewer tunnels for five hours per day with or without reasonable accommodation?"

"Please describe or demonstrate how you would perform these marginal and essential job functions?"

"Can you lift three pound boxes in order to load paper into the copy machine?"

"Can you meet attendance requirements of this job?"

"How many days were you absent from work last year?"

"Do you have the required licenses to perform this job?"

9. What can we ask job applicants about their age?

Where relevant, you can ask the applicant:

"If you are hired, can you prove that you are at least 18 years old?"

10. What can we ask job applicants about whether they have been convicted of a crime?

You can ask job applicants about non-expunged convictions as they relate to their fitness to perform the job they are seeking.

11. What can we ask job applicants about their personality?

Generally speaking, you can ask job applicants about their individual skills, tastes, traits, maturity level, or willingness to accept responsibility, as long as you do not ask any disability-related inquiries. This could, among other things, include asking applicants about what they like or dislike most about their current position or asking them why you should hire them.

12. What can we ask job applicants about their knowledge of our business?

Generally speaking, anything.

13. What can we ask job applicants about their health or their willingness to take a medical examination?

Because of the Americans with Disabilities Act ("ADA"), generally speaking we recommend that no health related questions be asked other than the question noted in Answer Number 8, above. The ADA prohibits pre-employment medical examinations until a conditional offer of employment has been extended. Thereafter, the results of the examination may not be used to deny employment unless the employer can demonstrate that the medical impairment which prompts the decision not to move forward with the offer is directly related to the job for which the person was to be employed and that the decision is supported by business necessity.

 

I trust these Questions and Answers have helped clarify your understanding of questions you can ask job applicants. Due to the rapidly changing nature of the law, information contained in these Questions and Answers can become outdated. These Questions and Answers are intended solely for educational and informational purposes. The information contained herein is general in nature and should not be a substitute for seeking the advice of an attorney. Please remember that individual circumstances may affect the manner in which the law applies to each situation. These Questions and Answers are not provided for use or reliance by you or any third parties and do not purport to be exhaustive or to render legal advice for your particular situation or any other specific case. They are meant to merely assist you in sharpening the questions you might ask of your legal advisor in your particular case.

Please give me a call should you have any questions.

Tom Leggette