United States:
7 helpful tips for interviewing potential employees
August 06, 2021
Lewis Brisbois Bisgaard & Smith LLP
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As many companies are optimistic about the future, they may be eager to hire new employees. Inevitably, you can start scouring the internet for interview brain teasers to quickly identify the brightest of the group (e.g., why are manholes round?). The problem with this method, however, is that a seemingly innocuous interview process can turn into a Trojan with serious liability. Here are seven tips to help employers reduce the risk of liability when interviewing applicants:
- Interviewer’s questions and notes should avoid asking questions about protected classes: The interviewer should not ask for or write any protected characteristics (e.g. disability, pregnancy, gender, citizenship, age, race, religion, etc.). In relation to notes taken during an interview, there is a high likelihood that they will be passed on to the opposing attorney during a legal dispute. Even simple questions like “Do you speak other languages?” can reveal information about race, religion and national origin.
- The interviewer should only ask questions that are relevant to the position: Tangential personal questions and small talk tend to quickly reveal information about the candidate that can be used as fodder for a discrimination lawsuit. It is best to stick to his script, which also has the added benefit of creating a more objective guide to end up comparing candidates for selection.
- Have the interviewer discuss their questions with HR or the consultant: Federal, state, and local laws can prohibit certain questions they want to ask. It is always better to be on the safe side.
- Remember that the candidate can provide protected class information: Even with carefully formulated questions, a candidate can choose to disclose proprietary class information. The interviewer must be ready to react correctly and to deal with the new information in such a way that the suspicion of discrimination does not arise immediately. For example, a candidate may come for an interview for a full-time position and inform the interviewer that they will have to go to doctor appointments that coincide with the busiest time of day for the company. The interviewer might be inclined to fire the applicant immediately, but a lawyer might argue that the applicant was really rejected because of his or her illness. The interviewer should be prepared for these unprepared events.
- Avoid searching for the candidate online: Nowadays it can be tempting to search a candidate for social media posts online. However, a single online search can reveal a lot of information about a person. It is best to assume that online searches always contain proprietary feature information. An offended applicant is likely to argue that the company relied on inappropriate information to refuse them. It is best to have a background search company perform the search to protect the employer from obtaining inappropriate information.
- Interviewers should objectively contrast candidates: After the interviews are completed, the employer should carefully make its decision based on the applicant’s merits and should stay away from protected characteristics.
- Follow record-keeping requirements: There may be laws relating to the recording of interviews that were taped on video, interview notes, correspondence, and more. Employers should review and comply with relevant laws.
Keep these tips in mind as you prepare and conduct interviews with potential employees to reduce liability for you and your company.
The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.
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