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HR[preneur] Episode 5: Interview Questions That Could Get You in Trouble

Spark Team Spark Team

HRpreneur Episode 5: Interview Questions

Sometimes the line between what you can and cannot ask during an interview can be blurry. In this episode, we'll talk about why you should avoid certain seemingly harmless interview questions.

Episode Info

Interview Questions That Could Get You in Trouble

Recent changes in employment law have impacted the hiring process in ways you might not realize. If you are a hiring manager, or will be interviewing job candidates in the near future, tune in to learn about what is and is not permissible to ask, and get tips on how to conduct successful interviews.

Reference Shelf

Speaker Info

Kara Murray is the Vice President of Sales Operations for ADP's Small Business Client Channel. Kara has been with ADP for 9 years and has been in various sales and sales leadership positions while she has been with ADP. One of her primary goals is to educate our clients on the ever-changing HR landscape and how ADP can help them overcome everyday workplace challenges.

Kristin LaRosa is Senior Counsel for ADP's Small Business Services division. Prior to joining ADP, Kristin worked as an employment lawyer where she represented employers in litigation and provided legal advice and counseling on day-to-day employment and HR matters.

Meryl Gutterman is Counsel for ADP's Small Business Services division. Prior to joining ADP, Meryl worked as an attorney in private practice representing small businesses in employment-related matters.

Full Transcript

Kara Murray: So I was reading a recent CareerBuilder survey and it stated that 20 percent of hiring managers reported asking an interview question that they later found out was illegal. The survey also showed that when presented with a series of interview questions, about one-third of them weren't sure if the questions were illegal or not. I'm Kara Murray and this is HR[Preneur], a podcast by ADP. We know you work incredibly hard to support your employees and make your business a success. More than likely this means you wear lots of hats and one of those might be HR Professional. We're here to help you get the insight you need in order to tackle day to day workplace issues.

This week I'm happy to be joined by Kristin LaRosa and Meryl Gutterman. Both work as counsel for ADP Small Business Services. They're here to talk about why certain seemingly harmless interview questions should be avoided. It's something anyone who's ever conducted interviews won't want to miss. I also want to take the opportunity to thank our ADP Client Appreciation Program for sponsoring today's episode. You can earn free payroll by referring ADP and if you want to find out more you can talk to your local ADP sales representative. So Kristin, it seems like the line between what questions are acceptable and what aren't has become blurry. Would you agree?

Kristin LaRosa: I absolutely would Kara. There are so many questions that are problematic from an employment law standpoint but often come up when interviewers are engaging in casual conversation with candidates. The question itself might seem innocuous but a candidate's response may present problems from the employer down the road, especially if that candidate's denied employment.

Meryl Gutterman: That's right. Sometimes interviewers may ask certain questions and it's usually out of genuine curiosity because they're trying to get an interview going and they really don't have any ulterior motives. But despite these harmless intentions, there are times when interview questions may resent biases that sometimes the interviewer has no idea that they even have.

Kara Murray: So despite the best of intentions asking certain questions can ultimately cause a company to violate non-discrimination laws and create other problems. I wrote down a few potentially problematic questions that I thought we could discuss today, some of which are pretty relevant right now. Meryl, can we talk through them here?

Meryl Gutterman: Sure, we'd be happy to.

Kara Murray: All right. Let's start with religious affiliation. Is it ever okay to ask an applicant for this information? What about if you need to make sure that you have coverage necessary for certain religious holidays?

Kristin LaRosa: So when it comes to religion unless you're hiring for a faith-based organization, for example, the question, it's really off limits. To put it in perspective, if you're hiring for the minister of a Christian church, for example, it's okay to go ahead and talk about the applicant's religious affiliate. But if you're hiring for a café barista, you're not going to want to ask whether that person has the same religious beliefs as you do. Religion is a protected characteristic and you can't discriminate or make employment decisions based on an applicant's religious beliefs or their practices. And while you may think it's harmless to ask an applicant about how they spent their Christmas, even asking that seemingly benign question can open the door to you having access to information that you really just shouldn't have access to when you're making a hiring decision.

Meryl Gutterman: Right. But that said, and this goes back to your question, Kara, about necessary coverage, if you're concerned about the applicant's availability or making sure that you have enough coverage, we recommend being clear about the work schedule by covering the days, the hours or the shifts required for the job and then asking the applicant whether they can work that schedule. You also want to keep in mind that you may be required to reasonably accommodate an employee's religious beliefs or practices so in this case that would mean allowing them to take breaks for prayer or swapping shifts with coworkers in order for them to attend religious services.

Kara Murray: Okay. That makes sense. What if they interviewer asks about the applicant's family?

Meryl Gutterman: So in an effort to make small talk this question is probably more common than you'd think and candidates will often volunteer information about their family or children without even being asked. And an interviewer may mean no harm by asking if an applicant is married or if they have kids but some states do prohibit discrimination on the basis of pregnancy or things like marital or family status. So while asking the question may not be unlawful per se making a hiring decision based on an employee's marital or family status could be, which is why we always tell our clients to refrain from engaging in this line of questioning.

Kristin LaRosa: That's right. And if you're concerned about the candidate's ability to travel or their ability to work overtime, your best bet is to explain to them what your scheduling expectations are and ask them whether they're able to meet those requirements. And along with that make sure you're being consistent when you're asking these types of questions so that you're asking all the candidates in your pool whether they can meet scheduling and travel expectations, not just your female applicants, for example.

Kara Murray: Makes sense. So here's another one I've heard interviewers ask. Where are you from?

Meryl Gutterman: Right. That seems like a totally innocuous question, right? You may just be curious or you're looking to make small talk. But either way you need to avoid this question and questions like it. National origin is another protected characteristic so you don't want to be asking an applicant where they're from or where they're born or what their ethnicity is or event where their accent is from. All of those types of questions open the door to you having access to information that you shouldn't have when you're going to make a hiring decision.

Kara Murray: All right. What about what year did you graduate?

Meryl Gutterman: So if I were the candidate I would take the position that this is just another way of you asking me how old I am. And an applicant's response to this type of question can help an interviewer determine the applicant's age, which like other protected characteristics that we just talked about, is something that shouldn't be a factor in the hiring decision. That said, there are certain types of jobs that may have minimum age requirements so in this case I would simply ask the applicant if they can meet those minimum requirements. But certainly don't ask them their actual age and also make it clear that they should not disclose it to you.

Kara Murray: Here's one that I know that has led to some confusion recently since it's traditionally been a pretty common question. And that is, what is your current salary? Why is this one off limits?

Kristin LaRosa: Right. That has historically been a common question. What is your current salary? You may recall having been asked that question when you've gone on an interview. Employers, they like to ask that question. Typically they want to see what the applicant's salary requirements are. They want to make sure that the applicant's expectations are in line with the company's budget. But it's now been shown that a person's pay history could perpetuate certain pay gaps. Meaning if you were unpaid in your previous job because of your gender, for example, and then you tell a prospective employer about your past salary, that employer may perpetuate the pay gap by offering you a similar lower salary.

So because of this potential problem, there are more and more jurisdictions that are passing laws that ban pay history questions during an interview in an effort to promote equal pay. So whether you actually have a law in your jurisdiction or not, it's really best to avoid asking how much an applicant has earned in their previous job. But you can ask them for their salary expectations just to make sure that you're really clear to the applicant that you're not asking for their actual pay history.

Kara Murray: Okay, got it. So here's a potentially sticky question and one that used to often pop up on application forms. Have you ever been arrested or convicted of a crime?

Meryl Gutterman: That's definitely a tricky one mainly because we're seeing also a lot of trends in legislation at the state and local level. So let's start with arrests. And generally many states don't permit employers to ask about arrests because the arrest itself is not actual proof of any wrongdoing. As to convictions, we have this trend, it's known as the ban the box movement, which depending on where your business is located, you may not be able to ask about conviction records either. To the extent that the law permits, though, you can ask about an applicant's criminal history but it would need to be job related and you may need to wait until after you've extended them a conditional job offer.

And also if you do learn that an applicant has a criminal history, there's a lot you have to consider before automatically denying them the job. The Equal Employment Opportunity Commission, which we refer to as the EEOC, has guidance on this topic. And then you may also want to review any state and local laws as well as your company policies and any past precedent before you take any adverse action against an applicant that relates to their criminal history.

Kara Murray: Okay, got it. So this one may be particularly relevant right now. Can employers ask whether an applicant has ever filed a sexual harassment claim?

Meryl Gutterman: Agreed. This is really relevant right now with the Me Too Movement and the focus on sexual harassment in the workplace. This topic is a hot topic. And the short answer to that question is no, employers shouldn't ask whether an applicant has filed a sexual harassment claim. Under Federal and also many state laws you can't retaliate against applicants or employees for opposing unlawful harassment. And you also can't retaliate against them for participating in a workplace investigation for example. So if you're asking about whether an applicant has filed a sexual harassment claim and then refused to consider them for the position, this would probably be considered retaliation. And it's really best to avoid any and all types of questions that could reveal that type of information.

Kara Murray: All right. So my last question for today relates to social media. Can an employer ask for an applicant's user name and password?

Kristin LaRosa: That's a great question. And believe it or not, some employers were asking applicants for this information, perhaps, we think, as a way for them to assess whether the candidate would or would not be a good cultural fit for the company. But many states do prohibit employers from asking for a candidate's social media log in information.

Meryl Gutterman: Right, and if you do intend to use social media during the hiring process, perhaps you want to review an applicant's public social media page, there are steps that you can take to help prevent any protected information, perhaps such as inadvertently uncovering an applicant's age or their religion, from influencing your hiring decisions. So if you're able try to choose somebody outside of the hiring decision process to conduct the social media searches. And that way they're going to be the ones that will see any possible protected information and they won't have to share that information with the hiring decision maker. They'll only share relevant job related information and that can help ensure that you have objectivity when you're making your hiring decisions.

Kara Murray: Thank you, Meryl, and thank you, Kristin. Is there anything else that you'd like our audience to know about interviews?

Kristin LaRosa: I'd like to just say that interviews can certainly help reveal a lot of really important information about a candidate that applications and resumes might alone not. They can certainly allow you to assess whether a candidate's a good fit for the company. But you really want to stay focused on asking solely job related questions. And if you have a candidate who begins to digress and talk about topics that might reveal their protected characteristic, the interviewer or the hiring manager should really do their best to kind of steer them back to stay in scope so they can learn more about the candidate with respect to those job qualifications.

Meryl Gutterman: And to do that make sure that you're training your HR managers so that they can avoid questions that are prohibited by law or that have the potential to reveal a protected characteristic.

Kara Murray: Awesome. Thank you so much, Meryl and Kristin. This has really been informative. We want to thank you all for listening to HR[Preneur]. Again, I'm Kara Murray and for all the latest episodes subscribe in iTunes or wherever you listen to your podcasts.

Overview

HR[preneur], a podcast by ADP's Small Business Services, is designed to help you get the insight you need in order to tackle day-to-day workplace issues. In each episode, you'll hear from industry experts about the latest in HR, such as the #MeToo movement, evolving marijuana laws, and more. Each episode will be between 10 and 15 minutes long, but full of practical advice. Find us on Apple® Podcasts or visit the HR[preneur] podcast page on Podbean.