As if hiring employees isn’t already stressful enough with paperwork, background and reference checks, training, etc., you also need to be aware of the things you can’t ask at a job interview … or risk liability if you do.
Being an employer in California can be a risky thing. But if you’re in business — either as a business owner or a manager — you need employees to carry out the tasks of the business. As you’re going through the hiring process, remember to focus your interview questions on skills and experience as they relate to the job and those tasks. Your interview questions should be aimed at determining an applicant’s qualifications and ability to perform the job they’re applying for. You generally can’t ask about personal things that are not job-related.
Specific Things You Should Not Ask at a Job Interview
The California Fair Employment and Housing Act (FEHA) prohibits questions that directly or indirectly imply discrimination as to the following:
- Race, Color, National Origin, or AncestryReligion
- Physical or mental disability
- Medical condition or questions related to genetics
- Marital status
- Number of children/dependents, or ages of children/dependents
- Sex, gender, gender identity or transgender status
- Sexual orientation
You also cannot ask about prior wage or salary history. You can’t ask about the benefits they received at their prior employment. You can’t ask if they’ve ever filed a worker’s compensation claim.
And you can’t ask about their criminal history — “have you ever been convicted of a crime?” — until after you’ve made them a conditional offer of employment. Even then, you should ensure you have appropriate paperwork completed including a conditional offer letter, and background check forms from a reputable provider.
Things You Can Ask Applicants
You should ask applicants what skills and experience they have that would help them be successful in the position they are applying for.
We recommend focusing on questions that “show” experience instead of telling experience. For example, instead of asking “Tell me about your communication skills” ask “Tell me about a time when you had to communicate a controversial idea or address a challenging topic with a co-worker.”
You can ask about their availability to work specific shifts or hours. You can ask about their salary expectations are.
If the job requires certain educational or licensure requirements, then you can ask for those items.
If hiring for a management position, you can ask about their leadership skills and management style. For example, a good question to ask might be “How would you address a situation where you have an employee who is underperforming?” or “Tell me about a time when you had to address a performance concern with an employee.”
You can also consider asking for work product samples. For example, if hiring for an interior design position, asking for a portfolio of work or if hiring for a PR position, asking for a sample press release. Just make sure that when asking for work product samples you ensure the applicant is redacting any confidential business information from a prior employer.
Plan Ahead to Minimize Your Risk
We suggest having a list of pre-planned questions that you ask every candidate that you interview. And then sticking to the list!
It’s best if you have your questions reviewed by an attorney or HR consultant before you use them in an interview to be sure you’re not inadvertently asking something that could get you into trouble.
And of course, train your hiring managers on the dos and don’ts of the interview process! Consider bringing in an attorney or HR consultant to conduct the training for you.
We’re Here to Help
At Emerzian Shankar Legal Inc., we are attorneys who provide employment law and HR consulting services. Our goal is to help you PREVENT litigation by solving risk issues BEFORE they become problems.