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What Employers Legally Can and Can’t Ask During a Job Interview and Salary Negotiation

January 19 - Posted at 3:00 PM Tagged: , , ,

“Where are you from?” It’s an easy conversation starter and suitable in most settings except a job interview.

So too, are other common social inquiries like, “Are you married,” “When did you graduate,” or “Have I seen you at my church?” Asking a candidate the questions may signal a red flag to the prospective employee as well as signal a lack of understanding of workplace anti-discrimination laws, or worse, no concept of workplace diversity.

The above examples can lead to information about a candidate’s national origin, marital status, sexual orientation, age, or religion. It is illegal to ask any questions that may illicit information about any status protected by federal, state, or local laws. The interviewer’s questions should stay focused on top-level priorities related to the job’s essential duties, such as the candidate’s work history as it pertains to the position, or availability for certain work shifts.

Other inappropriate interview questions include:

  • Have you ever been arrested?
  • Is English your native language?
  • Are you a US citizen?
  • Are you planning on having children?
  • Have you ever been injured on the job?
  • How many sick days did you take last year?
  • Why were you discharged from the military?
  • Do you like to drink socially?
  • When is the last time you used illegal drugs? (But not: Do you currently use illegal drugs?)

Not always so easy

A trickier area is when candidates might need a religious or disability-related accommodation. An employer has to walk a fine line of not asking improper questions about these two protected categories, while not ignoring the obvious. The Supreme Court's 2015 decision in the Abercrombie & Fitch case, involving the interplay of its dress code policy and a job candidate who wore a hijab to an interview, shows how difficult this balancing act is. 
It’s up to the candidate to speak up and request a reasonable accommodation to assist in the interview and application process (though to be clear, accommodation requests related to the job itself belong in the stage between an offer being made and the start date).

Post-offer considerations

Receiving a job offer may lead to another phase—salary negotiation.  Here, an employer is less restricted than you may think. You can ask the candidate about their salary history and salary requirements (and confirm this information by asking for W2s, if you choose), although a candidate is not legally required to provide it.

As for benefits like paid time off, a candidate should not assume they are legally entitled to them. For example, no state has passed mandatory paid vacation, so that also remains a point of negotiation. However, several states and cities have passed paid sick leave laws, and some even now include pregnancy or childbirth-related disabilities within their coverage (watch for that to be specified and explained in jurisdictions like California, Connecticut, Oregon, or Seattle and San Francisco). Make sure to put any negotiations in writing before offering the position to the candidate to avoid any future miscommunication.

Job seekers are not the only ones who may say something inappropriate or botch a question during a job interview. A recent survey by CareerBuilder found that approximately 20% of hiring managers reported that they have asked an interview question only to find out later that asking the question possibly violated the law.

It is important for both interviewer and interviewee to understand what employers  have (and don’t have) a legal right to ask in a job interview.  Even though their intention may be harmless, hiring managers could be putting themselves at risk for legal action by asking certain questions, that some could argue are discriminatory.

A number of hiring managers responding to the poll said they didn’t know if it was legal to ask job applicants about arrest records. Attorneys familiar with the issue agreed that asking about applicants’ criminal records can be tricky for hiring managers.

The Equal Employment Opportunity Commission (EEOC) issued guidance in 2012 designed to help employers understand what they can and can’t ask regarding criminal records.

The EEOC guidance states that an “arrest does not establish that criminal conduct has occurred, and a job exclusion based on an arrest, in itself, is not job-related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.”

Asking job applicants about their criminal records has become something of a hot employment topic as a growing number of states and municipalities have enacted “ban-the-box” laws that prohibit employers from asking on job applications if job seekers have been convicted of a crime.

Ban-the-box laws generally allow employers to conduct background screenings and ask about convictions later in the employment process—such as during job interviews. However, the constantly changing legal landscape on what employers can and can’t ask on applications and during interviews can confuse and frustrate many hiring managers.

Generally, the best policy is to avoid questions about applicants’ age, marital status, political beliefs, disabilities, ethnicity, religion and family. Some questions that can be legal and seem relevant to the job can be problematic by the way the question is posed. For example, the question “Are you a U.S. citizen?” might seem reasonable if a hiring manager is trying to determine if an applicant is eligible to work in the U.S. However, the better and more legally prudent question is: “Are you eligible to work in the United States?” Asking about a person’s citizenship status could reveal information about ethnic and national origin that could expose employers to complaints of bias.

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