The dos and don’ts of interviewing and hiring
However, there is no reluctance to enforce employee rights. The courtroom is no place for the employer to learn of employees’ rights. Each employer should invest the time and energy in learning the basic dos and don’ts of employment law, starting with the most basic: interviewing and hiring staff.
The Basics of Law
In California, individuals are protected from discrimination based on the following broad categories:
Race: Employees should not be treated differently for any reason because of their race. Racial groups include African Americans, Caucasians, Asians, American Indians, Eskimos, and Native Hawaiians, among others.
National Origin: The country of origin of an employee should have no place in the employment decision.
Religion: Employees should not be treated differently because of their religion. If an employee needs a modified work schedule to comply with a religious observance, the employer must make reasonable efforts to accommodate the employee. If accommodation would cause the employer undue hardship, the employer can refuse to work around the employee’s religious needs without liability for religious discrimination. However, do what you can and take the extra steps.
Sex: Employees should not be treated differently because of their sex (gender).
Medical Condition: Avoid asking questions about medical condition or disability. Although an employer can inquire whether an applicant can perform the functions of a job and can ask that a prospective employee demonstrate the ability to do so, more detailed questions can give rise to liability. Questions about a person’s medical condition, disability, medication, or hospital stays among other things, may violate the Americans with Disabilities Act.
Sexual Orientation: Employees should not be treated differently because of their sexual orientation.
With these basic rights in mind, it is important to review your application and hiring process.
Review your application to ensure that it does not ask for information prohibited under the applicable state or federal statutes. Delete any reference to characteristics, such as age, race, religion, national origin, gender, disability, sexual orientation or marital status, or other protected classes.
Employers in California also may not ask any information about salary history, criminal convictions or other related information in the application process.
Advertising & Job Description
Ascertain that all recruiting materials accurately describe the job, and omit non job-related criteria. Avoid including extraneous or unnecessary information. Most importantly, avoid any statements regarding protected classes (see below). For example, use statements like “Qualified candidates should possess a minimum of 5 years’ experience and a BA/BS degree” over statements like “He should have a BA/BS degree and have at least 5 years’, but no more than 10 years’, experience.” The second statement may suggest you are seeking a male applicant that is no older than a particular age.
In addition, the description should clearly list the physical requirements of the job. So, if the job requires the individual to lift 50-lb. sacks of rice, that should be disclosed. This description may preclude applications from individuals not interested in working, and will also protect you later if a claim is filed.
Interview Questions to Avoid
Both state and federal laws limit the questions that employers can ask job candidates. Generally, an employer cannot ask questions regarding a person’s race, color, religion, sex, national origin, birthplace, age, marital status or physical disability. Crossing this line could lead to a costly lawsuit for discrimination. It is important to make sure that everyone in an organization that interviews applicants understands the ramifications of improper questions on application forms, in a formal interview or even in a casual conversation. Below are some areas/questions to avoid when interviewing job applicants:
- Age (unless necessary to show permissible working hours or a minor for eligibility to serve alcohol). The applicant should not be asked ”How old are you?”, but informed ”You must be 21 to serve alcohol at this establishment. Are you 21 or over?”
- Birth date
- Date of graduation from grade or high school
- Citizenship status
- Country of origin
- English language skills (unless necessary for the job)
- How foreign language skills were acquired
- Relatives’ names
- Race or skin color
- Religious affiliation
- Organizational memberships
- Marital status
- Maiden name
- Pregnancy status
- Future child-bearing plans
- Age and number of children
- Child care arrangements
- With whom the applicant resides
- List of diseases or major illnesses for which applicant has been treated
- Hospitalization history
- History of mental health treatment
- Days absent from work in previous year due to illness
- Disabilities or impairments
- Prescription drugs being taken
- Past treatment for drug addiction or alcoholism
- Workers’ compensation history
- Height and weight (unless essential to safely perform the job)
- Prior paid work experience to the exclusion of prior unpaid work experience, which may discriminate against female or older applicants who may have extensive volunteer work experience (however, the Fair Employment and Housing Act permits employers to use veteran status as a factor in employee selection or to give special consideration to Vietnam-era veterans)
- Credit rating
- Bankruptcy proceedings
- Whether the applicant owns a home
- Past garnishment of wages
- Whether or not the applicant has ever filed a lawsuit against a previous employer
- If the applicant smokes (it’s better to state which smoking restrictions are in place and ask if the applicant can comply with them)
- Arrest record
- Any record regarding a referral to and participation in any pretrial or post-trial diversion program
- Whether the applicant has ever been convicted of a crime (without limiting the scope of the question – as there are some permissible questions for certain jobs)
- Whether military discharge was honorable or dishonorable
- Foreign military service experience
- Past salary
- Criminal convictions
Although all of these questions are not specifically addressed in anti-discrimination law, regulators believe that they serve no legitimate business purpose and should be avoided. Certain affirmative action reporting requirements may constitute exceptions. Information needed for tax, insurance or immigration purposes may be collected after the applicant is hired. Some questions that are normally impermissible may be lawful if justified by a valid business need. For example, an employer may lawfully inquire about an applicant’s present physical or mental condition or medical history if the inquiry is directly related and pertinent to the position in question or is directly related to a determination of whether the applicant poses a direct threat to the health and safety of others.
Permissible Interview Questions
Following is a list of permissible subjects/questions to ask when interviewing a job applicant:
- Job history and reasons for leaving previous jobs
- Place of residence
- Proof of age (whether the applicant can submit proof if hired)
- Whether the applicant is 18 years of age or over
- Whether a minor applicant can provide a work permit after being hired
- Education level (if job-related)
- Schools attended
- Any name change about which the employer should know in order to verify the applicant’s job history
- Whether the applicant is authorized to work in the U.S.
- Whether the applicant has relevant paid, unpaid or volunteer work experience
- The name and address of a person to be notified in case of emergency
- Whether the applicant can perform the specific job functions with or without accommodations (it may be helpful to attach a job description to the application form)
- Whether the applicant can meet attendance requirements (it may be good to list regular working hours and leave policies such as working overtime, working on weekends, traveling for work, etc.)
- Salary expectation for this job, rather than pay at prior jobs
There are other questions you should be sure to ask on job applications in order to prevent liability for “negligent hiring.” Liability for negligent hiring is a relatively new development in the legal world. The law generally holds an employer liable for the transgressions or vicious propensities of an employee if the employer knew or should have known from the employee’s past conduct or behavior that the employee could potentially be harmful to the public and other employees. For example, if a school knowingly hires a playground supervisor who has a history of molesting children and that supervisor later assaults a child, the parents of the child may have grounds to sue the school for negligent hiring (among other possible legal actions), because the school “should have known” that the supervisor was a threat to children.
Steps to Protect the Employer
It is recommended that an employer engage in the following steps to protect themselves from liability:
- Obtain an authorization to check the applicant’s references. By thoroughly checking references, employers help protect themselves from charges of negligent hiring.
- Requesting a statement that all answers the applicant provides are true and complete. An employer may be able to defend against a wrongful termination lawsuit by proving that the employee put false information on the job application, even if the employer discovers this after the fact.
- A statement that employment at the employer’s place of business is “at will,” which means both the employer and employee can end the employment relationship at any time, with or without cause.
Checking Job References
Honesty may be the best policy, but it is not always followed in employment applications. Either through insecurity or through the pressures of a competitive environment, interviewees or job applicants fib on job applications. Be aware of this. Check references and other relevant background information. Request written confirmation of certificates, degrees and other credentials cited by the applicant.
While former employers are often reluctant to give any information regarding a past employee’s performance beyond the employee’s job title or salary for fear that the employee will sue the former employer for defamation if the employee fails to get the new job, the California Civil Code makes certain communications between a potential employer and a past employer “privileged.” Such communications include conversations regarding an applicant’s job performance or qualifications based upon credible evidence, as long as the statements are made without malice.
The list of interview questions to avoid (provided earlier in this report) should also be referenced when deciding what to ask former employers. For example, a potential employer can ask a former employer about a past employee’s attendance, but they cannot ask about what type of illness made that employee miss work.
Also, employers should bear in mind that the references an applicant may offer could be personal friends rather than true workplace colleagues. Always make sure to ask for references that have experience working with the applicant.
Effective January 1, 2018, California employers can no longer ask an applicant for employment to disclose information about criminal convictions. The new law applies to employers with five or more employees. Once an offer of employment has been made, employers can conduct criminal history background checks, but only when the conviction history has a “direct and adverse relationship with the specific duties of the job,” and requires certain disclosures to the applicant if employment is denied based on the background check.
1. Employers may not include on any application for employment “any questions that seeks the disclosure of an applicant’s conviction history.”
2. Employers may not ask about conviction history of the applicant on any employment application or in an interview, until after the employer has made a conditional offer of employment to the applicant.
3. Employers can research certain areas of an applicant’s background after a conditional offer has been made. Employers may not “consider, distribute, or disseminate information” relating to any of the following areas when conducting a conviction history background check:
a. Arrest not followed by conviction, except in some limited circumstances set forth in Labor Code section 432.7.
b. Referral to or participation in a pretrial or posttrial diversion program.
c. Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.
4. If an employer intends to deny employment based on the applicant’s conviction history, it must make an “individualized assessment” if the conviction history “has a direct and adverse relationship with the specific duties of the job.” In making his determination, the employer shall consider all of the following:
a. The nature and gravity of the offense or conduct.
b. The time that has passed since the offense and completion of the sentence.
c. The nature of the job held or sought.
The employer is not required to record these results of this individualized assessment in writing. However, employers that are governed by local city and county background checks must be careful to follow those requirements as well. For example, a Los Angeles ordinance requires that employers provide this assessment in writing to applicants.
5. If the employer’s preliminary checks disqualify the applicant based on a conviction history, the employer is required to provide written notice to the applicant. The notice must contain all of the following items:
a. Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer.
b. A copy of the conviction history report, if any.
c. An explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond. The explanation shall inform the applicant that the response may include submission of evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, evidence of rehabilitation or mitigating circumstances, or both.
The applicant then has five business days to respond to the notice before the employer makes a final decision. If the employee responds within this time limit, and states that they dispute the accuracy of the conviction history report and is in the process of obtaining evidence to support their position, the applicant will have an extra five business days to respond. The employer must consider the information provided by the applicant before making a final decision.
6. If the employer makes a final decision denying the applicant employment solely or in part because of the applicant’s conviction history, the employer is required to provide a second written notice to the applicant containing the following:
- The final denial or disqualification. The employer may, but is not required to, justify or explain the employer’s reasoning for making the final denial or disqualification.
- Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration.
- The right to file a complaint with the Department of Fair Employment and Housing.
In addition to this new law, California employers need to be sure they are in compliance with the Federal Fair Credit Reporting Act (FCRA) and the California Investigative Consumer Reporting Agencies Act (ICRAA) when conducting any background checks.
Background Checks and Credit Reports
Under the California ICRAA, an employer is permitted to use consumer credit reports only if the individual is applying for or works in the following positions that would be applicable to a restaurant: a managerial position; a position where the individual would be a named signatory on the employer’s bank or credit card account and/or authorized to transfer money on behalf of the employer; or a position that affords access to confidential or proprietary information. [Labor Code 1024.5]. If an employer wants a background check, but is not seeking credit information, an employer may want to reassure applicants/employees that their credit information will not be sought.
Any time an employer uses an outside consumer reporting agency to conduct a background check on an applicant, there are very specific procedures employers must follow under both federal and California law. The Federal Fair Credit Reporting Act (FCRA) and the ICRAA generally require that employers conducting background checks on applicants adhere to the following requirements:
- Provide the applicant advance written notification in a self-contained document that an investigation may be conducted for employment purposes and obtain the applicant’s consent to allow the employer to investigate. The notification should be provided during the application process and should describe the nature of the investigation and include a summary of the applicant’s rights under the FCRA – this can usually be obtained from the consumer reporting agency – as well as a summary of the applicant’s right to inspect the investigative consumer reporting agency’s files. If an employer wants to order a consumer credit report concerning a job applicant or employee, the employer must notify the individual in writing of the basis under Labor Code section 1024.5 for permissibly using the consumer credit report (e.g., because the individual is applying for or holds a managerial position, etc.).
- The notification should also identify and provide contact information for the outside consumer reporting agency or credit reporting agencies that will conduct the investigation.
- Finally, the disclosure should include a box for the applicant to check to indicate that he or she wishes to receive a copy of any investigative report that is prepared. If the employer intends to obtain a credit report, the disclosure must also include a box for the applicant to check to indicate that he or she wants a copy of the credit report that is obtained.
- Provide “certification” to the consumer reporting agency that the report is being sought for valid employment purposes, that the required disclosure to the applicant or employee has been provided and that a copy of the report will be provided to the applicant or employee who has so requested within three business days of receiving it. In lieu of the employer providing the copy to the applicant or employee, the employer may contract with the consumer reporting agency to do so. When a credit check is requested, a copy of the credit report should be provided to the applicant at the same time it is provided to the employer.
- If requested by the applicant on the disclosure form, the employer must provide the applicant or employee with a copy of the report within three business days of receiving it.
- The Federal government states that if you receive a negative criminal background check on an employee, you are to give them an opportunity to explain and then determine if their story is “credible” by verifying it through former employers or law enforcement. However, California precludes you from doing any follow-up on an employee’s criminal background report unless the employee is on parole, supervising or working with young children or will have access to patients, drugs or medication.
- If an employer intends to take adverse action against the applicant based on information in the investigative report (i.e., not hiring the applicant), the employer must provide written notice to the applicant along with a summary of the individual’s rights under the FCRA and a copy of the report, if one has not already been provided.
- Employers should wait a reasonable period of time (approximately five business days) before actually taking the adverse employment action.
- If the decision is made to proceed with an adverse employment action, the employer must provide notice of the adverse action to the applicant or employee, along with:
a. contact information for any consumer reporting agency that furnished the report;
b. a statement that the consumer reporting agency did not make the decision to take the adverse action and is unable to explain the reasons for the adverse action;
c. notice of the individual’s right to obtain a free copy of the report from the consumer reporting agency and to dispute directly with the consumer reporting agency the accuracy or completeness of the information in the report.
Failure to comply with the FCRA or ICRAA can result in penalties, attorneys’ fees, state or federal enforcement actions, as well as private lawsuits. In addition, any person who knowingly and willfully obtains a consumer report under false pretenses may face criminal prosecution. The laws applicable to background checks are fairly complicated and California Restaurant Association encourages members to seek legal advice to ensure compliance and to ensure that the employer has accepted grounds for seeking the background check.
Disabled Job Applicants
The California Fair Employment and Housing Act (FEHA) governs businesses with five or more employees and prohibits discrimination against disabled employees and applicants. Note that the FEHA imposes more strict requirements on employers than does the Federal Americans with Disabilities Act (ADA) due to a broader definition of what it means to be “disabled.” The FEHA specifies that an employer may have to make special accommodations in the recruitment process for disabled applicants. If a disabled applicant is qualified for a position, the FEHA may require an employer to make “reasonable accommodations” for the applicant to perform the duties of that position once hired. However, an individual must be qualified for the job. For example, employers can require a CPA degree for certain accounting jobs. If another applicant is more qualified for the position than the disabled applicant, the employer may hire the other applicant.
Keep in mind however, that under the FEHA, employers may not ask job applicants about the existence, nature or severity of any disability they may have. The employer can, however, ask an applicant if he or she has any limitations that would prevent the applicant from performing the essential functions of the job. “Essential functions” are defined as parts of a job that, if removed, would fundamentally alter that job. Furthermore, the employer may state the attendance requirements for the job and ask if the applicant can meet them. However, the employer cannot ask how much leave the employee will need because of his or her disability. This is why it is important to have a broad job description, and for certain jobs, walk the employee through the job requirements before hiring.
Employers may also ask applicants to describe or demonstrate how they would—with or without reasonable accommodation—perform the essential functions of the job. An “accommodation” is whatever aid would help the disabled person perform the job. What is “reasonable” depends on an employer’s resources. For example, an independent restaurant would likely be required to do far less than a major restaurant chain. Employers are required to make reasonable accommodations only for disabilities about which they are aware. Employers do not have to hire disabled people who, even with reasonable accommodations, are unqualified to perform the essential functions of a job. Nor do they have to lower job requirements to accommodate the disabled. There is an important point here: “aware” does not mean that the employee actually disclosed. If the employer is aware through reading a social media site, observing the employee or other means, then the employer is deemed to be aware, regardless of whether the employee has ever disclosed the disability.
Under the FEHA, the employer may not use tests that do not relate to the essential functions of the job in question. If applications do contain a test that is relevant to the essential functions of the job, on the application employers may ask if applicants will require a reasonable accommodation to take the test (i.e., raising a desk with blocks to accommodate a wheelchair).
It is illegal to require medical examinations before making an employment offer. Under California law, however, employers can require an employee to undergo a medical examination after an offer of employment is made and before the employee actually begins working. The employer can make any job offers contingent upon successful completion of a medical exam. In all cases, medical exams should be based on business necessity, be job-related and be administered to all employees in the same job classification. The medical examinations may not be used to screen new hires for costly medical conditions.
Under federal law, medical examinations may also be required after an offer of employment has been made and before employment actually begins if the medical test is not aimed at revealing an employee’s physical or mental impairments. For example, an employer can require an employee to undergo a physical agility test for the purpose of seeing whether the employee can actually complete the test, but not to see what medical problems an employee may have. The test must relate to a business necessity. Any type of medical examination an employee has to undergo must be paid for by the employer and given to all new hires. Results from medical exams must be kept confidential and maintained in separate medical files.
If the exam reveals that an employee has a disability, the employer should work with the employee to see what reasonable accommodations can be made to help the employee perform the essential functions of the job.
Pre-Employment Drug Testing
Pre-employment drug tests have generally been considered legal under California law if the drug test is administered to every job applicant and the applicant is provided with a forewarning that he or she will be required to undergo a drug test. The results of the drug test must be reliable and kept confidential in order to protect the privacy of the applicant. Additionally, drug tests should only be administered after a conditional offer of employment has been made and all other conditions on hire (i.e., passing background and/or reference check) have been satisfied. However, drug testing is highly controversial and therefore it should be carefully considered before any such policy is implemented.
The most important practice every employer must adhere to is ensuring these guidelines are used. All too often, employers write policies, put them in place and never circle back to ensure managers are actually following them. The inconsistency is usually exposed after a lawsuit has been filed. Every employer should have annual reminders to their management staff regarding key employment policies and practices.
This report was reviewed for legal accuracy and updated in 2018 by Berliner Cohen Attorneys at Law