Maintaining Interview Compliance
Every day, HR meets scores of candidates who come to interview for open jobs. Both parties want to make positive first impressions and explore the fit. But for employers, these moments also represent potential exposure and risk. To guard against hiring discrimination suits, smart HR leaders train their people to maintain interview compliance by seeking multiple perspectives to make hiring decisions and handle sensitive information in full compliance with the law.
Andrew W. Singer, Esq. (partner) of Tannenbaum Helpern Syracuse & Hirschtritt LLP, supported by Jason B. Klimpl, Esq. (associate), visited TemPositions’ HR Roundtable Series on Thursday, January 30, 2014 to share their presentation, “Strategies for Conducting Effective and Legally Compliant Interviews.” Together, they offered guidance for reducing potential interview-related risks.
According to Singer, the topic of interviews is often overlooked. He finds that most hot topics in employment law focus on maintaining compliant relationships with either current employees or those that have been terminated. But interviewing is part of the employment process. And the US Equal Employment Opportunity Commission (EEOC) is now stepping up its enforcement of
lawful hiring practices. The potential risks—and ramifications—are only growing.
Helpfully, lawful interview practices align naturally with the rest of employment law. Putting the right policies in place for interviewing can have positive effects throughout the employment relationship. This is important, he stressed, because even the most well-meaning staff can be vulnerable to subtle prejudices that only smart policies can help overcome.
Deciding Who Merits an Interview
When companies post open positions, they can expect a deluge of resumes. Candidates may apply by mail, by email or through job search sites. And HR often conducts its own proactive searches—reviewing profiles on LinkedIn and other professional sites to find potential matches. No matter how hardworking or diligent, no HR department can be expected to meet with everyone. But HR must avoid eliminating candidates for unlawful reasons.
The best reason to eliminate a candidate is that they do not meet “the minimum essential requirements for the job,” Singer explained. HR must begin by weighing a candidate’s experience against the job description. Disparities between the needs of the position and a candidate’s skill set are the best “legitimate business reasons” for declining to interview.
Rather than make this determination alone, engage one or two others in the assessment, he went on. Invite another member of HR and/or a hiring manager to review the candidate’s qualifications, too. This spreads responsibility, and also helps ensure that one team member’s biases don’t cloud the decision.
Finally, document the company’s reasons for either choosing to interview or eliminating the candidate. It’s much easier to look back on clear, timely notes than try to remember the motivators behind your decision, Singer explained. And it’s far easier for the company to dispense with a claim of discrimination if the candidate’s file offers clear, valid, business-related reasons why they were not invited to interview.
Protected Characteristics and Social Media
As diligently as HR should focus on job-related factors, they must also avoid accessing or seeking out information that cannot be used in employment decisions lawfully. This can be especially difficult when referring to social media sites, where personal information is prominently featured—to the point that it’s nearly impossible to miss. Even LinkedIn, a highly professional social media platform, displays photos that could reveal protected characteristics.
Make dedicated efforts to avoid being exposed to potentially sensitive information, Singer counseled. If the company researches candidates via social media, assign a member of the HR team to filter the data. Ask them to collect job-related information on the candidate and exclude anything personal. Then, they can pass appropriate information to another decision-maker.
Of course, smaller organizations may not have the resources to create such a system of checks and balances, Singer conceded. In these cases, HR must exercise “extreme vigilance over personal bias.” To reduce risk, he stressed, always ensure there are documented, legitimate business reasons that clarify why an interview did or did not take place.
Picking the Time, Place, & Format for Interviews
Once HR is ready to start interviewing, most companies assume they can require any candidate to report to the office (or other company-selected location) at their convenience. They may also assume that if they fail to hire a candidate who requests a different location or time, they’re protected. But as Singer explained, this is another area in which employers commonly behave unlawfully.
While it’s a little known legal fact, under certain circumstances, applicants are permitted to ask HR for a different time slot and even request a specific appointment. To maintain interview compliance, employers make an effort to accommodate these requests when the candidate’s conflict is due to childcare obligations, medical appointments, or any challenge related to membership in a protected class.
Employers are also required to offer interview locations that are accessible to the disabled. This includes those in wheelchairs and those who are impaired in their sight or hearing.
For candidates in a protected class, it is only lawful to deny a request for a different interview time or location when the company can prove that it would constitute “an undue burden,” Singer explained. As proving undue burden is difficult (the standard is extremely high), it will usually be in the company’s best interest to work collaboratively with the candidate to find the best place—and time—to meet.
Preparation to Keep Interview Compliance
As the company prepares to meet candidates, it’s wise to continue best practices from the resume review process. To gain multiple perspectives, assign more than one person to interview the
candidate, Singer urged. And plan to continue documenting each candidate’s strengths and weaknesses—strictly as they relate to the open position.
It’s easiest to keep the interview focused on appropriate topics when asking all candidates the same questions. According to the needs of each open position, HR can prepare a list of relevant
inquiries in advance. The company will then be positioned to treat all candidates equally, and the resulting documentation will help HR compare candidates’ qualifications on an “apples to apples” basis. In court, such a business-based comparison could offer a powerful defense.
Approved questions can also help keep the interview process lawful when it extends beyond HR. They can be shared with hiring managers—who are far less likely to be employment law specialists—to reduce the chances they’ll wander into unlawful territory. Remember, Singer stressed, that under federal, state and local laws, companies may be liable for the “discriminatory conduct” of employees—including all those who may participate in an interview process.
Punishments for noncompliance are severe, and enforcement is increasing. The EEOC is now sending out “compliance testers” to apply for positions and monitor hiring practices.
Companies found in violation are subject to compensatory and punitive damages. Even individuals who work for the organization can be found personally liable if the courts find that they “aided and abetted” an act of discrimination.
A Review of Protected Classes
Prior to bringing in a new candidate, it may be helpful to review the protected categories, which enjoy particularly strong protection in New York State and especially New York City. HR
professionals know these classes very well, Singer noted. But remember, everyone who participates in the hiring process must be compliant. Consider the pre-interview period an
opportunity to educate and train all other interviewers—or refresh their knowledge.
Singer shared the following list of protected classes derived from an array of laws, including (among many others) Title VII of the Civil Rights Act of 1964, the Americans with Disabilities
Act, the New York State Human Rights Law and New York City Human Rights Law.
Under these combined statues, employers are forbidden from considering the following factors in employment decisions, including hiring:
- Race
- Color
- Creed
- Religion
- Gender (including pregnancy)
- Gender identity
- Sexual orientation
- National origin
- Citizenship status
- Age
- Disability (including perceived disability)
- Genetic information
- Veteran of military status
- Familial or marital status
- Victims of domestic violence
- Persons who have been arrested not resulting in a conviction
- Persons convicted of a crime unrelated to the job
- Bankruptcy
There are many characteristics that are not protected. For example, Singer noted that no law prohibits an employer from discriminating based on height. But these represent loopholes, rather than legitimate business reasons not to hire. And when loopholes are abused, they can lead to creation of more protected classes—and more risk.
In general, employers should avoid selecting candidates based on anything other than their fitness for the open position and their capacity to complete related tasks.
A Review of Bona Fide Occupational Qualifications
Employers may be permitted to discriminate in their hiring practices to fill very particular jobs. The exceptions to anti-discrimination law are very narrow, Singer explained. But there are times when characteristics like sex, age or religion can be considered “bona fide occupational qualifications”—essential attributes for doing the job.
Singer offered specific examples. A clothing designer who specializes in menswear is protected when they advertise for, interview and hire exclusively male models. A filmmaker who creates female characters is protected when they only audition and cast female performers. In such cases, failing to discriminate would make execution of the required job impossible.
“However, this exception is heavily scrutinized and narrowly interpreted,” Singer went on. A hiring manager at the company may be used to leading an all-female team, for example, but this is not a legal justification to dismiss male candidates. If the company derives its theory of bona fide occupational qualification from tradition/history, custom, co-worker or manager preference,
or corporate/brand image, “it’s not a lawful justification to discriminate.”
In most cases, the employer should not seek to invoke this exception, he concluded. Be sure hiring managers (and other company representatives who may meet with candidates) understand what constitutes a true requirement of the position and what doesn’t. And prior to making any employment decision based on this exception, consult with an experienced employment attorney.
Helpfully, there is a simple litmus test for HR. If someone without the preferred characteristic could perform the job, that qualification is not considered bona fide. This protection explains why flight attendants, which were traditional female (“stewardesses”), are now both male and female. Upon reflection, there was no job-related reason a male could not do the work.
Unlawful Questions to Avoid To Maintain Interview Compliance
Once the interview begins, the company must gather information that it needs—without gathering information that could (intentionally or unintentionally) lead to a discriminatory
decision. It’s very easy for innocent, legitimate questions to lead the conversation into dangerous territory, so it’s important to remember and stay strictly within lawful limits.
Age
Many HR departments are used to asking casual questions that might reveal a candidate’s age, Singer noted. But as Klimpl piped in to note, the courts have seen a “significant uptick” in the number of age discrimination claims over the past five years, as an aging group of long-term unemployed candidates vies for open positions. In this climate, candidates may interpret any
inquiry as discriminatory, so greater caution is warranted.
Many positions can’t be performed by anyone under the age of 18, so it’s lawful to ask the candidate if they are “at least 18 years of age.” But the company cannot ask the candidate to produce a birth certificate or otherwise disclose their exact age, can’t ask what year they graduated from a high school or training program, and can’t ask the ages of their children.
Several attendees noted that their companies have enacted “strategic imperatives” to recruit younger workers. But as Singer countered, HR can’t be asked to discriminate without creating risk. It’s perfectly lawful to advertise for junior or senior talent, with appropriate salary ranges and performance expectations. But the ages of any candidates who submit themselves for consideration cannot be a topic in the interview—or the hiring decision.
Sex
There’s rarely a legitimate reason to ask a candidate directly about their sex or gender. But there are also many lines of questioning that might lead to problematic disclosures.
To perform a reference check, HR may be tempted to ask a female candidate if she ever had a maiden name. But under the law, companies are prohibited from asking about a candidate’s relationships status—spanning whether they’re married, divorced, separated or single (including any preference to be addressed as Miss, Mrs. or Ms.), as well as whether they’re gay, straight, bisexual or transsexual.
What HR may ask, Singer counseled, is whether the candidate has ever worked for a past employer using a different name than the one provided on her application. This information will enable HR to confirm the candidate’s work history without broaching inappropriate topics.
Many employers want full-time staff, so they actively avoid hiring candidates who may need a flexible schedule. But it’s unlawful to ask a candidate if they have caregiver responsibilities, including whether they have children (natural or adopted), if they plan/expect to have children and/or if they are using birth control. HR also may not ask about the candidate’s living arrangements: who they live with and/or where a spouse, co-parent or parents live, etc.
What HR may lawfully ask is whether a candidate is willing to work the assigned hours for the job, put in overtime and/or to travel as needed by the employer. Make sure your questions relate truthfully to the position in question, Singer noted. But it’s perfectly lawful for HR to make sure the requirements of a job can be met.
Race and/or Nation of Origin
American employers know they may only hire US citizens or foreign workers with appropriate documentation. But in seeking to be compliant with immigration law, they sometimes ask inappropriate questions that lead to exposure. Questions about race and/or national origin fall into this category.
The best way to find out if a candidate can be lawfully hired, Singer advised, is to ask candidates the direct question, “Are you legally authorized to work in the US?” The law permits HR to inform candidates that their legal right to work in the US will be verified—as a condition of employment. But there’s no need to probe a candidate’s exact immigration or citizenship status, which could be interpreted as an inappropriate inquiry into race or ethnic origin.
In some cases, it can be a bona fide job requirement for an applicant to speak a second language. One attendee noted that his organization performs outreach in both English-speaking and Spanish-speaking neighborhoods; the company could not fulfill its mission without bilingual workers. But as Singer noted, there’s no need to ask an applicant’s race or nation of origin to find out if they speak a required language. They can simply be asked directly.
If speaking a specific language is not a bona fide requirement, it is unlawful to ask a candidate what language(s) they speak. Other inappropriate inquiries include asking a candidate to identify their accent, where they or their family came from, where they were born, and/or how long they’ve been in the US.
Upon hire, exact details of a candidate’s citizenship or immigration status will be revealed when the company processes an I-9 Form. But this information should never be shared with any hiring decision-makers beyond the immediate HR representative who files it. As a best practice, it’s wise to store I-9 forms separately from other employment documents (e.g., performance review files) so the information they contain can’t be disclosed carelessly.
Religion
“When it comes to religion, there are no appropriate questions,” Singer stated plainly. It may be tempting to ask a seemingly-devout candidate—who wears distinct clothing or makes remarks that could be interpreted as an expression of faith—whether they’d want days off to attend religious services, or to observe holidays beyond those included on the company’s calendar. But all such inquiries are unlawful.
HR may share the company’s attendance and PTO policy and ask the candidate if they can adhere to it. But the company cannot ask a candidate to disclose their religion or their congregation, or to name the religious leader at their place of worship (e.g., priest, rabbi). It is also unlawful to state that the company has any religious identity (e.g., Catholic, Buddhist).
If a candidate responds that they would need time off for religious reasons, the law does require the company to offer reasonable accommodation. A Jewish candidate who observes the Sabbath, Singer offered as example, may ask to leave work early on Fridays. While it’s perfectly appropriate to require a worker to make up such time on other days, it’s rare that a company will be able to prove “undue burden” for providing this flexibility to a qualified candidate.
Disability
Companies want to hire candidates that can perform all necessary functions of an open job. But in questioning a candidate about their abilities, it’s easy to violate the strong anti-discrimination laws that are in place to protect the disabled. If an applicant can perform necessary functions with or without reasonable accommodations, Singer stressed, they are protected. To discourage or dismiss a candidate for needing those accommodations is unlawful.
Whether or not HR suspects a candidate of being disabled, staying focused on job requirements will serve them. It’s perfectly lawful and necessary to inform any candidate fully about an open position, clearly identifying all “essential job-related functions.” It’s also permissible to explain the company’s attendance and punctuality requirements.
The only lawful way to probe the question of disability, however, is to then ask the candidate, “Can you meet these expectations, with or without reasonable accommodation?” This helps establish HR’s knowledge and compliance with the law, and also offers a disabled candidate the opportunity to declare their fitness for the position without equivocation.
It is not permitted, Singer warned, to ask an applicant if they’ve every applied for disability or workers’ compensation. HR can’t ask if they would need “special medical benefits,” if they’ve ever been injured or suffered from a serious illness, or ask if they would need time off for medical appointments. It’s inappropriate to ask what medications they’re taking or expect a candidate to share their prognosis. Even a workplace-related question about how many sick days they’ve taken in the past year can be seen as discriminatory.
Similarly, HR must avoid asking candidates to describe the general health of their families, whether or not anyone in their family or social circle has a disability, or whether they’ve suffered from drug or alcohol problems.
History of Arrests and Convictions
“In New York State and New York City, candidates with records are heavily protected,” Singer noted. In most cases (with a narrow exception, detailed below), it is unlawful to withhold employment from a qualified candidate because they’ve been convicted of a crime.
There are a few permissible interview questions regarding criminal histories. As long as HR informs the candidate their answer won’t disqualify them, the company is allowed to ask if the candidate has any past convictions or guilty pleas. HR may also ask if a candidate faces any pending criminal charges that could affect their ability to fulfill the requirements of the job.
But it is unlawful to ask a candidate if they’ve ever been arrested. Without exception, the law protects those who have only been accused or suspected of a crime, but not convicted.
A simple analysis can be used to determine whether a candidate’s past conviction is relevant— and potentially a lawful reason not to hire. The company must be able to prove that the hiring would pose an “unreasonable risk” to the company or other persons or property. This case can most often be made when a past conviction relates directly to the available position.
If a candidate for a bookkeeping position has been convicted of embezzlement while working as a bookkeeper, the law will likely agree that hiring them would meet the unreasonable risk standard. However, Singer noted, if the same candidate’s record consists only of a decades-old conviction for disorderly conduct, the law would likely not agree. There’s no “reasonable” connection between that type of conviction and performance of bookkeeping duties.
In conducting your analysis, both Singer and Klimpl agreed, weigh simple questions. When was the conviction, and roughly how old was the candidate at the time? (Many people make mistakes in their youth that they outgrow successfully.) Critically, does the past offense have anything to do with the open job? If not, the company should probably disregard it.
Because the law generally smiles upon giving candidates with criminal records the opportunity to work, companies that conduct this analysis and determine they will go ahead with the hire receive an important protection. As Klimpl explained it, if the company has considered the factors set forth in Article 23-A of the New York Corrections Law, “the law gives you the presumption that you did not negligently hire.”
All worker protections aside, Singer does recommend including the question, “Have you ever been convicted of a crime?” on employment application forms. HR must ensure these forms are completed in full, as candidates may be tempted to skip the inquiry and leave the space blank. But once these forms are complete, the information on them must be true. If an employer finds that an applicant lied on their application, they have a defense for declining to hire.
Financial Health
In the past, it was a common practice for employers to check the credit scores of their job applicants. After all, a poor credit history might reflect poor planning, lack of responsibility and recklessness. A candidate’s bleak financial picture might also suggest they would be tempted to steal from the company to make ends meet—especially if the open position involved handling
money or valuable company inventory.
But in 2014, it is no longer lawful to use evidence of “financial stress” against a candidate in employment decisions, Singer explained. Today’s workforce contains many long-term unemployed candidates, or candidates whose families include such workers. Increasing numbers of state legislatures are now passing or considering laws to protect these workers.
As a result, HR should avoid questions regarding a candidate’s financial health, including if they carry any debt or have ever filed for bankruptcy. The company also should not ask if the candidate has ever received public assistance or had their wages garnished for collection of financial obligations (child support, etc.), or if they rent or own their home.
Military Service
When it comes to the US armed services, it is unlawful for employers to demonstrate preference either for current/past members of the military or non-military candidates. The best way to avoid any appearance of bias, Singer counseled, is to avoid asking about any applicant’s military status as a general rule.
HR should not ask any candidate if they’ve served in the military, either in the US or elsewhere (unless it’s very specifically relevant to the job, assuming the highest of standards). It’s also inappropriate to ask if the candidate is currently serving in the US Reserves, and if so, what obligations they may have moving forward. And finally, HR should never ask about discharge from military service unless the candidate was dishonorably discharged.
Of course, if a candidate includes military service on their resume, it’s permissible to ask them about their experience—just as HR would inquire about any past position. Stay focused on the job and not the military as the employer, Singer recommended, and ask the candidate if they learned any skills during that experience that would help them excel in the available position.
Unemployed Status
Over the course of the Great Recession, the job market became flooded with available labor. And in response, Singer explained, many employers implemented a policy of only considering currently-employed applicants for open positions. The rationale was two-fold: HR had far too many resumes to review, and it could be argued that current workers were the most desirable. These were the star performers who had kept their jobs during the downturn.
Understandably, these practices attracted the attention of the EEOC, which has since determined that hiring discriminating based on employment status has a “disparate negative impact” on certain protected classes. Specifically, the practice has a “disproportionately averse and therefore discriminatory impact” on older workers, minorities, the disabled and veterans.
As a result, many states—including New Jersey—have now made it unlawful to include any language in a job posting that states or implies that the employer is only looking for currently employed applicants. Protection of the unemployed is even stronger in New York City, where companies are now prohibited from discriminating against candidates based on their unemployed
status at any point in the hiring process.
HR cannot inform any candidate that their current status as unemployed may or will be held against them in the hiring decision, Singer warned. However, it remains acceptable to ask an applicant to explain any gaps in employment, or to inquire how the candidate has spent their time since their last job.
An applicant that has spent time between jobs attending professional association events or taking classes related to their career will appreciate the opportunity to share these efforts. And by keeping an open mind, Singer explained, HR may discover a truly valuable addition to the team.
“The law aside, if you don’t consider the unemployed, you’re potentially losing out on someone who is going to appreciate the job like no one else,” he said. “They’ll work hard, be diligent, and be loyal. This is a potentially amazing pool of candidates.”
What To Do When Candidates Volunteer Information
In spite of HR’s best intentions—and careful questioning—candidates sometimes provide information that the company is not lawfully permitted to consider. Either on their resume or during the interview process, they may speak casually and openly about risk-laden topics.
Bear in mind that most candidates do this with the best of intentions, Singer noted. They’re not experts in employment law, and they don’t generally mean to do anything inappropriate.
It’s common, for example, for a candidate with a disability to disclose it openly in the interest of simply appearing honest. When this happens, avoid asking about any underlying conditions or diagnosis, and steer the conversation back toward appropriate topics, Singer advised. Revisit the job requirements, and ask the candidate if they believe they can perform the essential core functions of the position with or without reasonable accommodation.
When a candidate expresses they would need reasonable accommodation, it’s essential to ask what types they might request and document accordingly. The law requires the company to provide reasonable accommodation if a candidate is otherwise the best fit for the job and their needs do not constitute undue burden.
Several attendees recounted stories of candidates sharing medical information. One had received disability-related details in writing, which they were unsure how to handle. Singer advised attendees to keep whatever correspondence they receive on file, but to be sure that any HR-generated records describe only the candidate’s fitness for the position and any reasonable accommodation they’ve described needing to complete their duties.
A Note on Personal Details
In wrapping up questions to avoid, Singer addressed the understandable temptation to bond with candidates over personal details. When meeting someone new, it’s natural to ask open-ended questions that might not seem unlawful, but can quickly lead to risky disclosures.
Always keep questioning related to the job, he reiterated. Rather than ask a candidate what magazines they subscribe to (which could result in a candidate revealing membership in a
protected class), ask whether they subscribe to relevant trade journals. Rather than ask if they belong to any clubs, ask if they maintain membership in professional associations.
During the Interview: Lawful Questions to Ask
It may seem that all interview questions are fraught with risk. But there is vast territory that HR and hiring managers can cover with candidates, with open confidence.
It’s appropriate and necessary to ask a candidate to describe—in depth—as much about their professional history as HR needs to assess their qualifications. This can include asking about skills and previous work experience (including specific duties), specialized expertise or areas of professional interest, transferable skills, education, training, and notable accomplishments or recognitions.
It’s permissible to ask about a candidate’s preferred ways of work, to explore whether the company’s accountability structure would complement them. HR may ask the candidate to describe an ideal boss or team. Asking them to describe how they overcame a challenge in a previous position can shed great light on preferred problem-solving strategies.
And finally, it’s more than acceptable to discuss employment itself. HR can ask why the candidate left their most recent position or wants to leave their current one. They can also ask what the candidate knows about the company and/or its business, and why they believe the organization should hire them.
Documenting & Maintaining Interview Compliance
“Notes are invaluable,” Singer stated. “But be careful.” HR will want and need to document every interview. But in reviewing and filing notes for posterity, there are pitfalls to avoid.
Because the company meets so many candidates, it’s common for HR and hiring managers to jot down quick notes about a candidate’s appearance. While the intention—to remember individuals more easily later—is innocent enough, these documented judgments may be interpreted as discriminatory if an applicant files a claim.
Remember the protected classes, Singer stressed, and avoid any notes that could appear to make reference to a candidate’s age, race or (assumed) national origin, sex, religion, etc. Describing someone as “cultural” or “ethnic” creates risk, as it implies some racial identification. Categorizing someone as an “Ivy League-type” could be interpreted as commentary on their financial status. Subjective judgments like “cute” are also inappropriate.
As often as possible, keep notes factual and strictly related to the open position, Singer advised. Opinions are subjective and can be discussed with other members of the hiring team in person. But a candidate’s background, qualifications, and fitness for the open position are open to far less interpretation—and merit more permanent documentation. As long as the company’s notes are fact-based, they’re far less likely to be misinterpreted as discriminatory.
This important guidance must be shared with hiring managers and any other company employees who may interview—and take notes about—the candidate. In Singer’s practice, he frequently defends companies whose HR departments behave lawfully, but whose managers maintain separate applicant/personnel files filled with inappropriate comments and judgments.
Whenever an interview is complete, the company can and should review all notes to ensure they are lawful. It is a smart practice to re-write these notes, removing any careless observations or opinions, and keep all final documentation on file in HR.
Lawful Conduct After the Interview
After the interview, several steps may remain before the actual hire that also represent potential risk. HR must remain vigilant about communicating with candidates carefully and keeping all
members of the hiring team in compliance.
If the company has questions after the candidate leaves the interview, HR may want to conduct follow-up calls. These should remain strictly related to the job. And if any sensitive topics must be explored—such as a candidate’s request for a reasonable accommodation—the company must continue to make appropriate inquiries only.
In making the final hiring decision, Singer strongly recommended that HR build true consensus among as many decision-makers as possible. While it takes more time and effort to reconcile many points of view, this practice offers strong protection for the company; the candidate cannot later claim that a single, biased employee prevented their hire.
Once a decision is made, this period include references checks. The company should inform the candidate that this process is underway and that they will withhold any hiring decision until after it is complete. Then, HR should speak to whatever references were provided (though, it should be noted, the company is not limited to references offered by the candidate). Again, keep all conversations strictly related to the open position, Singer stressed. Confirm the candidate’s past experience as they shared it with the company, and document any responses objectively.
The candidate’s written consent will be needed to confirm educational information (e.g., degrees) and/or to conduct background checks. These consent processes are governed by the Family Education Rights and Privacy Act (for education) and the Federal Fair Credit Reporting Act, along with applicable state laws (for background checks). HR should review these statutes and ensure their written consent process is up to date.
If the company uses a third party vendor to conduct background checks, they should exercise “particular caution,” Singer noted. These companies routinely provide a seemingly standard consent form. But in his experience, they are rarely compliant. And if this noncompliance is discovered, both the vendor and the company will be liable.
At-Will Employment Reminders
As local HR departments know and appreciate, New York is an “at-will employment” state. As Singer explained, this means that “the employee or employer may terminate the relationship at any time and for any reason—other than an unlawful reason—and without prior notice.”
This offers important protection to employers, he stressed. New York State and especially New York City are very worker-friendly. But an employee’s at-will status gives the company room to reshape its workforce based on the needs of its business—at any time. So it’s an aspect of the employment relationship to be clarified and reaffirmed throughout the hiring process.
Include relevant language on the application form, Singer advised. And during the interview, avoid the topic of job security. When discussing the company’s disciplinary policies, describe discipline as “up to and including termination,” avoiding statements that imply or describe “progressive, step-by-step discipline.” At-will employment, by definition, means that the employer is not required to guarantee or promise any worker any term of employment.
Reaffirm the candidate’s at-will status as they transition to being a new hire. Include an at-will employment statement in the offer letter, and be sure it appears in the employee handbook. The new employee must understand that nothing negotiated with HR—such as a flexible work schedule or reasonable accommodation—will change their at-will status.
As a general rule, Singer discourages probationary periods because they may cloud the at-will relationship. As he put it, “the employer gains nothing” when they offer a new hire a guaranteed term of employment to try out the relationship (e.g., 90 days). Under the law, the company can remain free to terminate the new hire at any time if their performance disappoints—or the organization just decides it would rather change course.
A company can always choose to communicate with a new hire about failing to meet expectations—and offer them the (termless) opportunity to step up their performance. But as Klimpl noted, formal probationary periods don’t just threaten to confuse new hires about their at-will status in the short term. Some incorrectly come to believe that if they “finish” their probationary period, the company will guarantee them longer-term job security.
Compliance and Company Leadership
HR’s priority will always be to remain in complete compliance with employment law. But business leaders sometimes have different priorities. They may believe that the rules are there to be bent (or even broken) when they interfere with strategic imperatives, company growth, aspirations for corporate culture, or revenue. They don’t fully understand the risks the company faces when it comes to noncompliance.
It is HR’s responsibility to help them understand these risks, Singer explained. While HR as a department may not generate revenue, it brings value to the organization in many ways— especially when it comes to reducing exposure and possible penalties.
Keep Focused on the Position, Enjoy the Interview Process
Ultimately, candidates and companies just want to get new employment relationships off on the right foot, Singer said in closing. And as risky as an unlawful interview can be, a lawful one can mark the beginning of something positive—the influx of new, bright talent.
Ensure everyone in HR is properly educated on interviewing best practices, he advised. Train all other employees who will interview a candidate, in addition to HR. As best as you can, limit the company’s exposure to information you don’t need or are not permitted to consider. And when it’s volunteered to HR—and it often will be—handle it appropriately, and with confidence.
When HR and the candidate both stay focused on the job at hand, he concluded, risks are at their lowest. And everyone can know they’re asking and answering just the right questions.
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Please note: the information reflected in this post is not official legal advice nor does it necessary reflect the opinions of the associated firms.
Anne DeAcetis is a freelance writer based in New York. Reach her at anne.deacetis@gmail.com.
The HR Roundtable is a breakfast forum for human resources professionals in New York City sponsored by The TemPositions Group of Companies. TemPositions, one of the largest staffing companies in the New York tri-state area with operations in California, has been helping businesses with their short- and long-term staffing needs since 1962. Visit them online at www.tempositions.com or email them at info@tempositions.com.
