With the addition of new legal restrictions being placed on HR and hiring managers in California, caution and strict compliance has become essential. Even seemingly innocent questions can land employers in legal hot water as the result of a complaint filed by a disgruntled interviewee.
As with many other workplace issues for California employers, discretion is the greater part of valor, in a manner of speaking, when it comes to hiring. The legal landscape has become scattered with litigious landmines that are easy to trip on without intent.
Seven Questions to Avoid When Interviewing Candidates
There are a number of issues and topics that are "off limits" in a job interview, but California has a few more than most and some of these just came into being with the 2018 California legislative session. Keeping up on all of the "dos and don'ts" of compliant recruiting and hiring new employees is a challenge for even the most organized business.
With the recent spate of employee claims and lawsuits, due diligence and compliance are paramount for employers. Minal Haymond, an Associate at Seyfarth Shaw LLP, summed up the dilemma in a recent post,
"Recent California legislation, including laws banning questions about salary history and criminal convictions, has bought new interview jitters for employers. These new laws, along with the Fair Employment and Housing Act's prohibitions against questions going to an applicant's protected status, confirms the point that there is such a thing as a "bad interview question." In this ever-changing legal landscape, it is important for California employers to know what they can and cannot ask candidates in a job interview."
With this in mind, here is an overview of seven common questions that should not be asked during an interview with a prospective employee, starting with some recent additions.
Questions Regarding Current Salary
California AB 168 became effective January 1, 2018, and prevents California employers from asking job applicants for their salary history. On July 18, 2018, the California governor signed AB 2282, clarified key terms in AB 168 that were felt to be unclear. This new legislation also allows employers to ask about an applicant's salary expectations for the position.
In addition, if a prospective candidate voluntarily discloses salary history, the employer can use that information for setting a salary offer as long as that information is not the only factor.
Prior Arrests and Convictions
The so-called "ban-the-box" legislation, AB 1008, was signed by former Governor Brown on October 14, 2017. This bill added a section to the California Fair Employment and Housing Act (FEHA) and contains state-wide restrictions on the types of questions an employer can ask regarding an applicant's criminal history.
Since AB 1008, it is unlawful for California employers to:
- Include on any application for employment any question that seeks the disclosure of an applicant’s conviction history;
- Inquire into or consider the conviction history of an applicant before the applicant receives a conditional offer of employment; and
- Consider, distribute, or disseminate information about any of the following while conducting a criminal history background check in connection with any application for employment:
- (1) an arrest that did not result in a conviction, subject to the exceptions in Labor Code § 432.7(a)(1) and (f);
- (2) referral to or participation in a pretrial or posttrial diversion program; and
- (3) convictions that have been sealed, dismissed, expunged or statutorily eradicated pursuant to law.
California AB 1008 also stipulates that an applicant’s criminal history can only be considered after the employer has made a conditional offer of employment. Once that offer has been made and the criminal history obtained, the new law prohibits the employer from denying an applicant a position "solely or in part because of conviction history" until the employer performs an individualized assessment.
Applicant's Age or Date of Birth
Typically, an applicant's age is not relevant to most hiring decisions. Consequently, to avoid the appearance of age bias, any question that concerns age should be avoided. An exception is that it's permissible to ask applicant their age if they are under 18. In fact, employees 40 years of age and above are protected by the Age Discrimination in Employment Act.
Another facet of the age question is asking any questions regarding when an applicant graduated from high school. Information required for setting up pensions or profit-sharing plan can be obtained after the person is hired.
Gender, Race, and Religion Questions
The restrictions around these types of questions can be extended even to requiring photos of applicants to be submitted with resumes or applications. It is generally understood and agreed to that employers should not take into consideration an applicant's religious affiliation, race or gender.
Consequently, it is a good practice to avoid any questions that might be construed as an indirect attempt to obtain that information by an employer.
Immigration or Citizenship Status
According to a post at Mondaq.com,
"...California's Labor and Workforce Development Agency has made it clear that the state's labor protections apply to all employees—regardless of their immigration status. Thus, you should stay clear of questions about a candidate's citizenship (unless U.S. citizenship is a legal job requirement). You can, however, ask whether the applicant has a legal right to work in the United States, so long as you do not do so on a discriminatory basis."
In fact, it's a good practice to avoid even seemingly benign questions such as, "Where are you from originally?", or, "How long have you been in the United States?" since this can be seen as an attempt to determine applicant's national origin.
Questions About Marital Status
It is advised to strictly avoid questions related to parenthood or marital status. For example, it is prohibited to ask whether an applicant is married, pregnant, or plans to be in the future. In addition, it is best to avoid questions about possible spouses, as well.
Because marital status is protected by the California Fair Employment and Housing Act (FEHA), it is best to restrict any inquiries on that matter until after a candidate as been employed. This is, of course, essential information for a variety of employment-related issues for new hires.
According to an article by the Society for Human Resource Management (SHRM),
"The California Fair Employment and Housing Act (FEHA) prohibits any non-job-related inquiries of applicants or employees, either verbally or through the use of an application form, that express directly or indirectly a limitation, specification or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age or sexual orientation, or any intent to make such a limitation, specification or discrimination."
Consequently, no prospective California employer should ask about or address the sexual orientation of a candidate, nor include any such questions on their application form.
Incorporating Hiring Best Practices in California
The following tips will help your HR team or hiring managers stay in compliance while avoiding potential litigation issues with each interview as you grow your company:
- Download and read the California Department of Fair Employment and Housing's (DFEH) fact sheet, which provides information regarding questions employers can ask applicants.
- Any job interview with a candidate should be prepared in advance to help keep the interviewer on track and in "safe" territory.
- Regular training and updates should be given to all job interviewers and HR personnel to ensure they know which interview questions are illegal or inappropriate.
- It is highly recommended that you consult with your attorney regarding any questions about information from the DFEH or about illegal hiring questions in California.
Getting Expert HR and Workplace Management Assistance
Accurate and timely management and HR compliance practices are required for HR professionals in every business. Managing all of this can be challenging, but you do have options.
Accuchex is a reputable workforce management services provider and can not only assist you with the burden of your ongoing compliance demands, but can potentially prove to be a more cost-effective solution, as well.
Click the button below to learn what you need to know about labor law in California. For more immediate information, feel free to call Accuchex Payroll Management Services at 877-422-2824.