What to ask: Tips for hiring new employees

By Stephen P. Wiman

Nossaman, Guthner, Knox & Elliot, LLP

Los Angeles

[Editor’s note: The guidelines mentioned below are based on California as well as federal law and are intended to point out the key issues health information managers should be aware of when interviewing job candidates. State laws may vary and should be consulted for specific points of law.]

Employers must take care with regard to questions asked during a job interview or on an employment application. Some questions which would appear at first blush to be totally relevant or innocuous can spell trouble.

The following are some potential problem areas with respect to pre-employment inquiries. Each employer should have legal counsel review application forms to assure compliance with applicable federal and state law. The approved application can then provide a guide for interviews as well. The following list is based upon "Pre-employment Inquiry Guidelines" of the California Department of Fair Employment and Housing, as well as federal law. Employers need to examine their own state’s laws as to specific requirements.

1. Citizenship.

On one hand, an employer cannot discriminate against a person because of his or her national origin, foreign citizenship, status as an alien lawfully admitted to the United States for permanent or temporary residence, or status as a refugee.

On the other hand, it’s unlawful for an employer knowingly to recruit, hire, or continue to employ unauthorized aliens for employment in the United States.

In order to comply with both sets of obligations, an employer can ask all applicants the following question which the Office of Special Counsel for Immigration-Related Unfair Employment Practices in the U.S. Department of Justice recommends: "Are you presently legally authorized to work in the United States on a full-time basis?"

An employer may not inquire into the applicant’s (or the applicant’s parents’) birthplace. Inquiries concerning nationality, ancestry, descent, parentage, and related topics are unacceptable. Inquiry into foreign language ability is permissible if relevant to the job position at issue.

2. Marital status and number of dependents or children.

With a few exceptions, an employer may not inquire into an applicant’s marital status. Exceptions may exist for bona fide occupational qualifications, business necessity, conformance to security regulations, or to affirmative action plans. An employer may not inquire into the number of an applicant’s children or dependents.

3. Pregnancy and family responsibility.

An employer may not inquire into pregnancy-related issues or issues related to family responsibilities, such as child care.

4. Age.

Questions which identify the applicant as being over forty years of age — age, birth date, or dates of elementary or high school attendance — are not permissible.

5. Education.

As noted, dates of attendance at elementary or high school are not appropriate. However, the following are acceptable subjects of inquiry:

• What are the names and locations of schools attended?

• Did applicant graduate?

• What subjects were taken?

6. Height and weight.

An employer may not ask about an applicant’s height or weight or require (or give the option) that an applicant affix a photograph to an application or submit a photograph prior to employment. Interviews may not be videotaped. An employer may require a photograph after employment.

7. Physical condition or disability.

It’s improper for an employer to ask about an applicant’s general medical condition, state of health, or illnesses; an applicant’s receipt of workers compensation benefits; an applicant’s physical or mental disabilities or handicaps; or any question which is likely to elicit information about a disability.

Physical exams can be required

An employer may ask whether an applicant can perform a specific task. An employer may state that an offer of employment may be made contingent upon the applicant passing a job-related physical examination.

8. Accommodations in the application and interview process.

Employers subject to the federal Americans with Disabilities Act (and any similar state statutes) must make reasonable accommodations in the application and interview process. For example, an employer would be obliged to allow a blind applicant to submit application information orally or to provide a sign interpreter for a deaf applicant. For this limited purpose, an employer may ask an applicant whether he or she will need reasonable accommodation for the hiring process.

9. Race, sex, and religion.

An employer may not inquire about an applicant’s sex, race, or religion. An employer may state the regular days, hours, or shifts to be worked so an applicant can know how such a schedule may pertain to the observance of religious holidays or days of worship.

10. Military service.

An employer may not ask questions concerning dates of an applicant’s military service, type of discharge, or service in a foreign military. An employer may inquire about skills relevant to employment acquired during U.S. military service.

But what about a felony record?

11. Arrest.

An employer may not ask about an applicant’s arrest record. It may, however, ask about felony convictions if providing a signed statement that a conviction will not necessarily disqualify the applicant.

12. Organizations and Activities.

An applicant cannot be required to list "all" organizations, clubs, societies, and lodges to which he or she belongs. An employer may request that an applicant list job-related organizations, clubs, professional societies, or other associations.

13. Miscellaneous.

An employer may not ask about an applicant’s economic status. An employer also may not ask if an applicant failed to qualify for a bond (for example, an employee’s fidelity bond) or about the cancellation of a bond with respect to the applicant. An employer may state that bonding is a condition of employment.

Again, with respect to its employment application and interview process, each employer should consult with its counsel to assure compliance with federal requirements and any applicable state law.

[Editor’s note: Steve Wiman, a partner in Nossaman, Guthner, Knox & Elliott, focuses on business litigation and business law. He provides advice and representation in a wide range of employment matters including employment discrimination, employee discipline, and wrongful termination. Health care providers are among his clients.]