Employers invest significant time, energy, and resources in bringing a new employee onboard. Recruiting, screening, and interviewing processes are all done with the goal of hiring an employee who will do a job well and work well within an organization. So what do employers need to know to hire successfully? And what are the things employers don’t need to know?
Need to Know
Experience. Does the applicant have relevant work experience (or other experience)?
Education. Will the applicant’s education help him or her do the job?
Personality. Does the applicant have the motivation, energy, and attitude that’s needed for the job? For the organization? Note—employers shouldn’t always look for an applicant who will “fit in.” Sometimes the right person for the job is someone who will shake things up, bring a new perspective, or reenergize a team or department.
Not So Much
Credit score. It’s apparent from recent legislation on the state and local level that employers don’t need to know whether an applicant has a good credit score—at least for most jobs. The District of Columbia is the jurisdiction that most recently enacted a law that prohibits employers from asking job applicants about their credit history. It joins 11 states that have similar laws. Generally, the laws allow employers to inquire about an applicant’s credit history if the job involves unsupervised access to large sums of money or to customers’ financial information.
Pay history. A new state law in Massachusetts and a new ordinance in Philadelphia prohibit employers from asking about an applicant’s pay history. And similar legislation is pending in other states and municipalities, including New York City, where a bill approved by the city council awaits the mayor’s signature. Basing an employee’s pay on pay history instead of the market value of the position can be a disadvantage to workers who entered the workforce at a lower pay rate; and it can perpetuate gender-based pay disparities.
Not Right Away
Criminal history. Several states and numerous cities and counties have enacted “ban the box” laws that prohibit employers from asking about an applicant’s criminal history on a job application. Many require employers to delay these questions until after an applicant has been offered a job.
Not at All!
Protected characteristics. It’s a rare job that requires a job applicant to be of a certain age, race, color, religion, national origin, or sex (think female actor for a female role). Yes, there are exceptions. But by and large, employers don’t need any of this information about an applicant. If employers ask for information, it’s because they want the information. And if they want the information, it’s because they’re going to use the information. At least, that’s what the Equal Employment Opportunity Commission (EEOC) “generally presumes” about an employer’s questions. So, if an employer doesn’t plan to use certain information to make a hiring decision, it shouldn’t ask for it.
The Americans with Disabilities Act prohibits employers from asking questions that are likely to elicit information about a disability before a conditional job offer has been extended. Employers should avoid questions about an applicant’s history of using sick leave, history of hospitalizations, workers’ comp claims, etc. Questions should be limited to whether the applicant can perform the essential functions of the job with or without reasonable accommodation.
To get the information it needs while avoiding information that’s irrelevant (and possibly unlawful), an employer should focus on the qualifications for the job in question and make inquiries that will help it evaluate how the applicant’s skills and experience align with those qualifications.
Joan S. Farrell, JD, is a Legal Editor for BLR’s human resources and employment law publications. Ms. Farrell writes extensively on the topics of workplace discrimination, unlawful harassment, retaliation, and reasonable accommodation. She is the editor of the ADA compliance manual—ADA Compliance: Practical Solutions for HR. Before coming to BLR, Ms. Farrell worked as in-house counsel for a multistate employer where she represented management in administrative matters and provided counseling on employment practices.
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