7 Helpful Tips for Interviewing Potential Employees

By: Lewis Brisbois' Labor & Employment Team

As many businesses look optimistically into the future, they may be eager to hire new employees. They may inevitably begin to search the web for interview brainteasers to quickly identify the brightest of the bunch (e.g., Why are manholes round?). The problem with this method, however, is that a seemingly innocuous interview process can turn into a Trojan horse laden with serious liability. Here are seven tips to help employers reduce risk of liability in interviewing job applicants:

1. Interviewer’s questions and notes should avoid asking questions about protected classes: The interviewer should not inquire or write about any protected characteristics (e.g., disability, pregnancy, sex, citizenship, age, race, religion, etc.). With respect to any notes taken during an interview, there is a strong probability that they would be handed over to opposing counsel during litigation. Even simple questions, such as “Do you speak any other languages?” can reveal information about race, religion, and national origin.
2. The interviewer should only ask questions that are germane to the position: Tangential personal questions and small talk have a tendency to quickly reveal information about the candidate that can be used as fodder for a discrimination claim. It is best to stick to one’s script, which also has the added benefit of creating a more objective guide to compare candidates for selection at the end.
3. Have the interviewer review their questions with the HR department or counsel: Federal, state, and local laws may prohibit certain questions they may want to ask. It is always better to be safe than sorry.
4. Remember that the candidate may volunteer protected class information: Even with carefully worded questions, a candidate may still decide to reveal protected class information. The interviewer must be prepared to properly react and deal with the new information in a way that does not immediately trigger suspicion of discrimination. For example, a candidate may come in to interview for a full-time position, informing the interviewer that they will have to attend doctor appointments that coincide with the busiest time of day for the business. The interviewer might be inclined to dismiss the applicant right then and there, but an attorney could argue that the candidate was really rejected for their medical condition. The interviewer should be prepared for these un-scripted events.
5. Avoid searching the candidate online: In this day and age, searching a candidate online for social media posts may be tempting. However, a single online search can reveal troves of information about an individual. It is best to assume that the online searches will always contain protected characteristic information. An aggrieved applicant will likely argue that the company relied on improper information to reject them. It is best to have a background search company do the search to help shield the employer from obtaining improper information.
6. Interviewer should objectively juxtapose candidates: Once the interviews are complete, the employer should carefully make their decision based upon applicant merit, steering away from protected characteristics.
7. Follow recordkeeping requirements: There may be laws that pertain to recordkeeping interviews that were videotaped, interview notes, correspondence, and more. Employers should review and abide by the relevant laws.

Keep these tips in mind when preparing for and conducting interviews of potential employees to help reduce liability for you and your business.

For more information on this topic, contact the author of this post or visit our Labor & Employment Practice to find an attorney in your area. You can also subscribe to this blog to receive email alerts when new posts go up.