Base your decision on job-related factors, and ask questions carefully.
For employers, hiring quality employees has always been of critical importance. Various laws require employers to be more focused in this effort.
For example, it was not that long ago that employers asked any questions they wanted: how old are you, do you have any illnesses, are you involved in any church activities, etc.?
The various discrimination statutes have brought this practice to a halt. Applicants are protected from discrimination. For example, an employer cannot refuse to hire an applicant because she is black, or because he has a disability.
As a result, employers must be more precise in the questions they ask during interviews. Every question must be job-related. For example, if having a high school diploma is a requirement of the job, the employer can ask the applicant if she has one. The employer cannot ask when she received it. This question is not only irrelevant to the job, but it also leads to information about her age.
There are also other limitations on the hiring process. The Equal Employment Opportunity Commission has issued guidelines on the use of criminal background checks. It has indicated that when using criminal background checks, employers must be guided by three factors.
First, the employer must consider the nature or gravity of the offense or conduct. For example, armed robbery is more serious than vandalism.
Second, the employer must consider how much time has elapsed since the conviction or completion of the sentence.
Third, and last, the employer must determine how the offense or conduct compares to the job sought. An applicant for a finance position with an embezzlement conviction is different from an applicant with a single drunk driving conviction.
There is a new pervasive influence in the hiring process, and it has legal consequences. Social media is ingrained in our culture. The legal concerns relate to the use of an applicant's social networking site in making the hiring decision. Typically, the site is rich in information, much of which can be used. For example, a Facebook's narrative about the applicant's volunteering sheds positive light upon the applicant's values.
However, there is a dark side to the Force. The site can also disclose information the employer is not entitled to know at the interview stage. For example, it may disclose the applicant's religion, or may reveal that the applicant has a disability.
In most instances, hiring decisions are based, in whole or in part, on objective factors: years of experience, licenses or credentials held, years of required schooling, etc. However, the decisions are often also made on more subjective reasons. If a hiring decision is challenged, the employer must establish that the decision was based on non-discriminatory reasons. This is aided when the “subjective” interview process is as “objective” as possible. This can occur in several ways.
First, the persons doing the interviews should be trained in how to conduct interviews. This training can focus in part on what questions can and cannot be asked.
Second, the interviews must be standard. The same set of questions should be asked of each individual. Additionally, each individual's answers should be graded on the same scale or matrix.
Finally, the interviewers should evaluate the interview results for each applicant on an individual basis. The first candidate is reviewed on a stand-alone basis, then the second the same way and so on.
Everything we have discussed comes back to the same answer: the hiring process must be based on individual assessments, and solely on job-related factors. Employers can make good hiring decisions, while complying with the requirements of the law.
Jim Jorgensen is a partner at Hoeppner Wagner & Evans LLP, with offices in Merrillville and Valparaiso. His practice centers on business law and employment law. He is a frequent speaker and author in many venues.
