The Hiring Process
Recently on Thursday Thoughts, I discussed the importance of working out an ‘employment defense strategy’ because employers are faced with the ever-present reality that litigation can come knocking when least expected. “But we love our employees and they love us, Abby! We would never have these kinds of problems, so why invest the time and resources in planning for this kind of problem?” That is an excellent situation to be in – and I hope you never need to defend your business. Certainly, many small business owners care for their employees like family, and the notion of seeing their employee on the other side of a courtroom table seems absurd. If you are in such a fortunate position, it’s very likely you took great care in hiring the right applicant for the job. The interview process is a fantastic opportunity to take time getting to know an applicant, and it is also important to vet the individual to determine whether he/she would be a good fit for your workplace. But there are some things you need to be aware of when interviewing and hiring to make sure you are complying with federal and state prohibitions. Here are some things you CAN and CAN’T ask about in the hiring process:
Employers CAN ask an applicant’s name, address, telephone number, social security number, position sought, availability for the position sought, references, education history (such as what degrees an applicant holds, but stay away from dates of graduation, etc), and reasons the applicant might have left a former job. You may also ask for references.
You have read my prior post about the recent Pay Equity Law, so you know that you are no longer allowed to ask about an applicant’s pay history prior to an offer of employment that includes an amount of compensation. But have you heard of “Ban the Box”? This law, which went into effect in 2016, prohibits employers from asking an applicant about his/her criminal convictions prior to the interview stage of hiring (unless you’re in Portland, in which case you can’t ask about criminal convictions until you’ve made a conditional job offer). You should also be careful to avoid certain topics that would lead to potential claims of discrimination in your decision to hire or not hire, including marital status, pregnancy, sexual orientation, gender, age, whether an individual has any physical or mental impairments, and medical history.
It might be a good idea to pull out your application form and interview questions to double check that you aren’t asking questions that you should avoid. Over the next few weeks, I’ll be tackling the subject of employee rights, including the right to be free from discrimination and harassment, leave laws, Oregon Sick Time, rest and meal breaks, and workplace accommodations. If you have any questions, drop me a line. See you at the next Thursday Thoughts!