Michelle Adams
Lawyer, Entrepreneur and Coach
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The Legal Seller Blog

The Legal Seller blog is a resource for Entrepreneurs & Professionals

Five Questions an Employer Should Avoid Asking a Job Applicant


Legal Tip:  Check your Employment Applications!

If your business is growing that probably means you will be hiring your first employees.  But. . .now what?  The steps to hiring an employee include posting a job opening, sending out an application that complies with the law, choosing who you will interview and then conducting a legal interview.  As an employer you need to be aware of the questions you can legally ask in a job interview.    Because Google doesn't have a law degree, it's always best to call a licensed attorney to review your job application.  However, often small business owners try to do most of the work themselves.  Just make sure you are aware of the laws of your state before drafting your own application or conducting any interviews.   

Here are five important areas to avoid.

1.  Sex and Marital Status

If your application asks the applicant to list their gender or marital status, it's time to rewrite it.  Avoid asking for a woman's maiden name as well.  Ask simply for the applicant to list their full name.  In the interview do not ask an applicant if they are married, the name of their spouse (or anything about their spouse).  By following this rule you will avoid any potential discrimination claims.  

2.  Arrests and Convictions

A standard question on applications used to be whether the applicant has ever been arrested or convicted of a crime.  While it is understandably concerning to employ someone who has a criminal background of which you may not be aware, numerous courts have ruled that an employer may only ask about felony convictions, not misdemeanors.  Therefore, tailor your questions appropriately.

3.  Age

Unless you want to be accused of age discrimination, do not ask a person's age or birthday. If it is important for a person to drive or be of a certain age to work in your establishment, simply ask if they can legally drive.  Do not ask what year they graduated high school as age can be deduced from it.  Simply ask if they graduated if that's important to your business.  

4.  National origin

It is illegal to have an "English only" rule that prohibits languages other than English from being spoken at the workplace.  Therefore, you should avoid questions on the languages spoken UNLESS it is a requirement of the job (such as a translator).  If you ask questions about birth or ancestry, it could implicate this rule.

5.   Accidents, Illnesses and Injuries

In order to not violate the rules of handicap or disability discrimination, avoid asking an applicant about injuries, accidents and illnesses.  Do not ask about doctor visits, medications, medical treatment or hospital treatment.  You may be searching for a healthy candidate, but these questions could get you in trouble so just avoid them.

It's a good practice to review your applications yearly and implement the necessary changes to keep them legal!  

Michelle Adams