Shackelford, Melton, and McKinley, LLP
Whether your business is focused on providing candidates for direct-hire placement, temporary assignment, or contract-to-hire, learning about the candidate is a key part of the services you offer. There are as many different styles of conducting an interview as there are people conducting interviews, but there is one ‘rule of the game’ that should be followed by everyone conducting interviews. So, as you prepare to interview candidates, make sure you know and follow the legal rules to avoid falling into any traps.
The interview process is a great time to confirm things included in the candidate’s resume and to get an idea of the candidate’s perspective on his or her next job. However, some questions that seem innocent can, in fact, land you in big trouble. The main rule to remember is to only ask questions that allow you to gather information that is relevant to the candidate’s ability to perform the essential functions of the job in question. Questions about the candidate’s work experience, compensation history, and level of responsibility at his prior job are great questions to ask because these types of questions fall clearly within the rules of the game. On the other hand, questions that are unrelated to the candidate’s ability to do the job pose potential risks. To help you understand the difference between a question that may be problematic, and a question that’s appropriate, following are some examples of acceptable questions, as compared to their unacceptable counterparts:
Acceptable: Do you have a reliable means to get to and from work?
Unacceptable: Do you have a car?
Acceptable: Are you authorized to work in the U.S.?
Unacceptable: Are you a U.S. citizen?
Acceptable: Will you be able to work a routine 40 hour work week?
Are you available to work overtime on occasion?
Are you available to travel [as often as job requires]?
Unacceptable: Do you have kids?
What is their daycare situation?
Acceptable: Are you over the age of 18?
Unacceptable: How old are you?
Acceptable: Have you been convicted of a crime in the last 7 years?
Unacceptable: Have you ever been arrested?
Although the interview is often used primarily as a fact gathering exercise, it also provides you with an opportunity to evaluate the candidate’s demeanor, attitude, ability to interact, and other attributes that may be important to the job and your client. Keep in mind the type of job that you are seeking to fill and observe (or, if it’s a phone interview, listen for) communication characteristics and personality characteristics that are important for the position. For example, companies often want their receptionists, sales people, or hospitality employees to be outgoing and good at managing conversation, while other positions may place less emphasis on communication skills.
If you take notes of the interviews you conduct, make sure that you are using useful descriptive terms that match up with what the job requires. Keep in mind that interview notes are one of the types of documents that are likely to get brought out of the company files and into the lawyer’s power point presentation at trial. If you would be embarrassed to have someone else look at your interview notes, consider changing your note-taking style.
The moral to the story: DON’T ask questions related to gender, marital status, race, ethnic background, disability and other personal characteristics that cannot legally be used as the basis for a hiring decision. DO use the interview as an opportunity to assess the candidate’s self-management skills: his ability to handle tough questions, to analyze facts and ideas quickly, and to think fast under pressure.
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