Module 1: The Hiring Process

 Introduction

           Searching for and landing a new job can be a very stressful experience.  This is especially true if the applicant is new to the job market, returning to work after leaving the labor force, or just concerned about what can be a major life change.  Applying and interviewing for a new job may be challenging, but job candidates who begin their job hunts aware of their rights can approach the process with the confidence of knowing that the law protects them from unfair hiring practices. 

Laws have been on the books for over 40 years to ensure that each job seeker has a fair chance in the interview and selection processes, but applicants are still often assessed based upon criteria that are inappropriate, irrelevant, or even illegal.  According to a survey conducted by a popular job search website, 20% of hiring managers have asked questions in a job interview that they later discovered were improper, and about one-third of the over 2,000 hiring and human resource managers who participated in the poll said they were unsure about the legality of certain lines of questioning.[1]   As a result, the burden of ensuring that job interviews are conducted in a manner that is consistent with the candidate’s rights often falls upon the candidate herself.  Our discussion revolves around common inquiries, testing, and other processes involved in getting a new job and what applicants need to know to protect their rights as a prospective employee.

Job Postings

            The hiring process typically begins when an applicant replies to a posted vacancy with an application form or resume and, in response, receives an invitation from the employer to interview.  This is the first place where employment rights are vested and can be enforced under certain federal and state laws.[2]   Advertisements for open positions should describe key facts about the job including clear explanations of job requirements, the duties of a new employee, and the educational and professional experience required for the job. Job postings should also notify potential candidates if any travel or foreign language skills, professional certifications or licenses, or overtime and irregular hours would be expected. 

Clarity and detail regarding employee expectations are very important in job advertisements because employers are required to hire based upon the applicant’s qualifications.  Employers may expose themselves to liability if the hiring decision maker assesses candidates based upon requirements that are inconsistent with or omitted from written job postings. For example, the Americans with Disabilities Act requires employers to make reasonable accommodations for people with disabilities in most circumstances.[3]  Because the legal duty to make reasonable accommodations for disabled employees directly relates to a job applicant’s ability to perform the essential functions of a job, both the applicant and the employer must be very clear on what these essential functions are. 

For example, imagine an employer interviews a candidate for an advertised position for which heavy lifting is required, but this fact is not included in the job description.  The candidate is qualified for all aspects of the job as described in the advertisement but has a disability that limits his ability to lift heavy objects, even with reasonable accommodation.  If the employer decides not to hire the qualified candidate because he cannot lift heavy objects, the hiring decision may be interpreted as being based upon the candidate’s disability rather than his qualifications for the job, which is prohibited by the ADA.  If the job description had listed the ability to lift heavy objects as a requirement for the job, then the hiring decision could more easily be interpreted as a fair assessment of the applicant’s qualification for the work. 

Employers should advertise jobs with detailed descriptions of work expectations, but should be careful about the language that they use in soliciting new employees.  Employers are prohibited from including certain information in job postings.  The Age Discrimination in Employment Act, for example, prohibits many age preferences or limits in job advertisements.[4]  Maximum ages in job postings are allowed in the rare circumstance where age is reasonably necessary to the function of the business and the trait that disqualifies certain applicants cannot be determined in any manner other than by reference to their age.[5]  For example, an advertisement seeking wait staff for a restaurant may not include an age limit in the job description, but an age limit would be allowed in a posting for a role in a professional theatrical performance for a character of a particular age.

Applying for a Job

Applicants typically express their interest in an open job by submitting a job application or resume.  Job applications are documents that request information from a candidate that is relevant to their ability to perform the job.  Written applications are not always required and job applications vary in formality based upon the practices of the individual business.  Following review of a candidate’s application, an employer may invite the applicant for an interview.

 Job Interviews

An interview is a discussion between the applicant and the employer about a job candidate’s skills and qualifications for essential job functions.  The employer may also use the opportunity to meet one-on-one or in a small group to assess the applicant’s interpersonal skills and demeanor, and learn relevant information about the candidate that was not disclosed in the job application or resume. 

Some job candidates dread interviews.  Stress and anxiety before an important job interview is natural and often a reflection of the applicant’s desire to perform well and to receive an offer.  Performing well on a job interview can be critical because employers may make hiring decisions based on candidates’ behavior in an interview in addition to their objective qualifications for the job.  Employers usually interview job candidates about their education, employment history, start date and work schedule requirements, professional affiliations, licenses or certifications, and their former or current supervisor’s name and contact information.  Interviewers may even ask job applicants some personal questions, such as hobbies and interests to gauge their interpersonal and communication skills or determine whether they would work well as part of an established team.  However, at this early stage, employers are limited in the type of information that they can require job candidates to disclose. 

Employee Privacy Rights in Interviewing & Hiring

 Employers may not request information relating to interviewees’ family or medical history, age, religion, disability, race, marital or family status, national origin, or gender.  Additionally, applicants cannot be asked about whether they receive disability benefits, have taken leave to which they were legally entitled, or whether they have ever made workers compensation benefit claims.[6]   Employers may however, inquire into other aspects of their prospective employees’ backgrounds, subject to certain privacy protections.

Arrest Records

While many employers inquire about arrest records at the application and interview phase, most jurisdictions do not allow an applicant’s arrest record to be considered in hiring decisions.  Across the United States, 28 states and over 150 local jurisdictions have enacted “ban the box” laws which prohibit questions on job applications about criminal history.  By banning “the box” – a reference to the checkbox usually situated next to a yes or no question about prior criminal convictions on job application forms – legislatures are encouraging employers to make assessments of job candidates rather than immediately dismissing them based on the stigma created by a criminal record.  More than two-thirds of the U.S. population lives in jurisdictions with ban-the-box or similar laws, so it is important that job applicants with criminal convictions know the employment privacy rights in their areas.[7]

Online Privacy

Some job candidates may be concerned that information about them that is posted publicly on the internet or social media outlets may impact their ability to get a job. Over time, it has become increasingly common for hiring managers to run applicants’ names through internet search engines to gain access to information not disclosed by job candidates.  In such cases, employers run the risk of unintentionally discovering information – the applicant’s marital status, religion, or disability, for example – that should not be considered in the hiring process.  If this occurs, employers should disregard the information and ensure that it is not included in the candidate review process.  However, this can be more easily said than done – once information has been discovered, it is very difficult to disregard it altogether. To protect job applicants from employers’ improper use of social media accounts, several states have passed laws prohibiting private employers from requesting applicants or employees to disclose user names, passwords, or any other identifying information about personal social media accounts.  Colorado, California, and North Dakota have gone even further to protect social media users by prohibiting any adverse action by an employer for any lawful, off-duty conduct of an employee.[8]  While even the most far-reaching laws protecting online activity still allow employers to not hire or to terminate employees based on social media posts in some circumstances, employers must tread carefully with respect to workers’ privacy rights in this regard.[9]

Effective hiring and selection processes can help employers build a workforce that is skilled, qualified, and competent.  However, employers must abide by national and local laws regulating the screening, hiring, and training of new employees.  Job applicants who are treated unfairly may have grounds for a legal case, and it is critical to know one’s rights as a job seeker.