Keeping it Legal: Safe Interview Questions

Author: Paul Edwards
Paul Edwards

Paul Edwards

Paul Edwards is the CEO and Co-Founder of CEDR HR Solutions and author of the blog HR Base Camp. Since 2006, CEDR has been the nation’s leading provider of customized dental employee handbooks and on-demand HR solutions, helping dentists and their office managers successfully handle employee issues, prevent and resolve disputes before they lead to lawsuits, and safely navigate the complex employment law landscape. Our Solution Center is staffed by HR experts and attorneys. Call 866-414-6056 or visit www.cedrsolutions.com.
08.07.14 / 9:00 am

Job applicant having an interview

Any time you interview job candidates for an opening at your practice, the questions you ask matter as much as the responses received. This is partly because better questions lead to better answers (the difference between “Did you like your previous job?” and “Tell me about a project or process you enjoyed at your previous job”). But that’s not the only reason for caution on your part. It’s also an issue of legality.

Not all interview questions are created equal, and some are actually dangerous. Thus, if you’ve been an employer or manager for any length of time (even just a few months!), you’re probably well aware that there’s a long list of hiring ‘don’ts’ that go along with your ever-so-long list of ‘to-dos.’

For instance, you probably already know that you should include on job ads that you’re an ‘equal opportunity employer’ (or ‘EOE’). This helps make it clear that your hiring practices are fair and non-discriminatory. And you likely also know to avoid interview questions relating to ethnicity, national origin, age, religion and marital status. All of these are considered ‘protected classes,’ and you are not allowed to make hiring decisions based upon this information.

But are you aware of how casually off-limits topics can sneak into even the most seasoned dentist or manager’s interview if we don’t stay on guard?

Some inquiries you might make just to get to know your candidate are actually big no-nos! Asking a particular question may imply an interest in one of those protected statuses we just listed, or the candidate’s answer may be especially likely to reveal this information.

For instance, never ask an interview candidate:

×     Where were you born?

×     What’s your spouse’s name?

×     ‘Octavio’ is an interesting name, where’s that from?

×     When is your birthday?

×     Is that your married name?

Even if you’re just trying to set a friendly, casual tone for the interview, these questions are too likely to reveal information that you cannot legally take into consideration. You’re better off not knowing.

Instead, ask questions directly related to the hiring process and the job:

×  Are you able to work in the US on an unrestricted basis?

×  If hired, can you demonstrate proof of citizenship?

×  What languages do you speak or write fluently? (BUT ONLY if job related)

×  I’ll need to see proof you are old enough to work. (ONLY if appropriate)

Hidden pitfalls for the unwary

There are even trickier snares employers get caught in during interviews – and even seasoned practice owners can get them wrong. Beyond simply announcing your compliance with the Equal Employment Opportunity Commission (EEOC), there are many other laws and rules you need to take into account.

These include the Americans with Disabilities Act (ADA), which makes it illegal to ask about an applicant’s mental or physical disability OR perceived disability, and the Federal Bankruptcy Law, which makes it illegal to discriminate based on bankruptcy or credit. You’ll also want to be careful asking about arrests and convictions. (Restrictions in many of these areas vary state by state. Employers are welcome to call CEDR at 866-414-6056 or email info@cedrsolutions.com to check what’s safe.).

You’ll also want to avoid these areas of conversation during your hiring process.

Don’t touch these topics with a 10-foot Hiring pole:

  • Aliases
  • Children/Pregnancy
  • Organization or club membership (may reveal protected class and irrelevant)
  • Ability/Disability (Don’t ask anything beyond, “Are you able to perform the essential functions of this job, with or without reasonable accommodation?”)
  • Emergency contact  (Not necessary until after hire)
  • Gender
  • Sexual orientation
  • Health
  • Availability for weekend work (This can prompt information you’re better off not knowing. If the job will require it, use something like this: “This position requires weekend work/travel/overtime. Do you have any responsibilities that conflict?”)

And if there’s a specific, bona fide, job-related reason to ask your candidates a certain question, then make sure you ask all candidates for that position the exact same question.

Dos, Don’ts, and Don’t-You-Dares!

There are a few other interview-process dos and don’ts that are essential to keep in mind for best results. First of all, DO ask open-ended questions that prompt the candidate to describe their use of desirable work skills and traits during their prior work or life experiences. This is called a “behavioral” interview style. It leads to much more useful information than you would otherwise receive, since it’s harder for candidates to give you rehearsed “stock” answers.

While you’re collecting this great information, though, there’s a big ‘don’t’ that you will need to skirt around. DON’T make notes that could later be used against you. Remember, anything you write down could theoretically be used as evidence against you later if a complaint is filed against you, and your documentation is subpoenaed. If you must take notes, keep them separate from the candidate’s resume or application, and do not record any personal characteristics.

Finally, throughout your interview phase, DON’T EVER take photos of applicants, even to remind yourself who was who. Pictures reveal all sorts of protected characteristics. They’re even illegal in some states without a job-related reason!

In all cases, it’s the skills and qualities needed to fill the position that are important. Focus on those, follow the precautions given here and keep an HR expert on call when you need advice. These steps will help keep you on the right side of the law before, during and after your interview process.

Paul Edwards

Paul Edwards

Paul Edwards is the CEO and Co-Founder of CEDR HR Solutions and author of the blog HR Base Camp. Since 2006, CEDR has been the nation’s leading provider of customized dental employee handbooks and on-demand HR solutions, helping dentists and their office managers successfully handle employee issues, prevent and resolve disputes before they lead to lawsuits, and safely navigate the complex employment law landscape. Our Solution Center is staffed by HR experts and attorneys. Call 866-414-6056 or visit www.cedrsolutions.com.

2 responses to “Keeping it Legal: Safe Interview Questions”

  1. Excellent advice!

    Having a detailed job description with you before and during the interview process will help you clarify what the position entails and its necessary qualifications.

    By establishing these requirements objectively through the use of the job analysis, job descriptions and job specifications, you will eliminate bias that might be caused by poor values and will be able to look objectively at traits tied directly to performance of the job.

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