Law Review; Pre-employment do’s and don’ts
Life gets more complicated everyday – or so it seems. One of those areas where you can innocently run afoul of the law surrounds what you can and can’t ask during employment interviews.
Under a variety of federal and state law, if your business employs five or more people (or if you own a business), you must be careful when interviewing would-be employees. Employers should follow these guidelines.
Name: Can’t ask: Maiden name; Can ask: “Have you ever used another name?”
Residence: Can’t ask: “Do you own or rent your home?”; Can ask: Place of residence.
Age: Can’t ask: Age, birth date, date of attendance or completion date of high school, or questions which tend to identify applicants over age 40; Can ask: “If hired can you show proof of age?” or “Are you over 18 years of age?”
Citizenship: Can’t ask: Birthplace or “Are you a U.S. citizen?” Can ask: “Can you, after employment, submit verification of your legal right to work in the United States?”
National Origin: Can’t ask: Questions as to nationality, ancestry, or lineage or “What is your mother tongue?”; Can ask: Languages the applicant reads, speaks or writes if use of a second language is relevant to the job.
Sex/Marital Status/Family: Can’t ask: Questions which indicate applicant’s sex (if it’s not obvious) or marital status, number or children, provisions for child care, questions regarding pregnancy, or “With whom do you reside?”; Can ask: The name and address of a parent if the applicant is a minor.
Race: Can’t ask: Questions as to applicant’s race or color.
Physical Description: Can’t ask: Questions as to applicant’s height and weight and can’t ask applicant to provide a photograph before employment.
Physical Condition: Can’t ask: Questions regarding applicant’s general medical condition, questions regarding receipt of worker’s compensation or “Do you have any physical disabilities or handicaps?”; Can: State that the job may be contingent on passing a job-related physical exam and can ask: “Do you have any physical condition or handicap which may limit your ability to perform the job applied for, and if so, what can be done to accommodate your limitation?”
Religion: Can’t ask: Questions regarding religion or “Does your religion prevent you from working weekends or holidays?”; Can: Provide statement of regular hours, days, or shifts to be worked.
Record: Can’t ask: For arrest record or “Have you ever been arrested?”; Can ask: “Have you ever been convicted of a felony” but that question must be accompanied with a statement that a conviction will not necessarily disqualify an applicant from employment.
Military Service: Can’t ask: General questions regarding military services such as dates and type of discharge; Can ask: Questions regarding relevant skills acquired during U.S. military service.
Organizations: Can’t ask: List all organizations, clubs, societies and lodges to which you belong; Can: Please list job-related organizations, clubs, professional societies or other associations to which you belong – you may omit those which indicate your race, religious creed, color, national origin, ancestry, sex or age.
References: Can’t ask: Questions of applicant’s former employers or acquaintances which elicit information about the applicant’s race, color, religion, national origin, physical handicap, medical condition, medical status, age or sex; Can ask: “By whom were you referred for a position here?” and may request names of persons willing to provide references.
Notice: Can’t ask: Name, address and relationship of relative to be notified in case of accident or emergency; Can ask: Name and address of person to be notified in case of accident or emergency.
Porter: Can’t ask: “How in the world can I avoid these guidelines?”; Can ask: “What’s this country come to?”
Jim Porter is an attorney with Porter Simon, with offices in Truckee and Reno. He is a mediator and on the California Fair Political Practices Commission.
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