Avoid legal trouble by asking the right interview questions

Over 78% of our business last year came from SaaS and software vendors targeting a variety of vertical industries. A good percentage of these clients are headquartered in other countries and are launching operations in the US.  They bring us in to help build out their US teams (usually around leadership and SDLC) and on occasion, they will ask us to work on overseas requirements as well.

The laws from country to country can differ substantially when it comes to legal questions you can ask during an interview. When it comes to US law, here is a summary of the types of questions that are OK, versus questions that could get an employer into a messy legal situation.     

In our company, it is the norm to conduct what we call a “debrief” call or meeting with each candidate after each interview with a client.  This enables our recruiting team to determine the level of interest our candidate has to work for our client after the initial and subsequent interviews. Our clients also provide us with feedback after each candidate interview to express their level of interest and any next steps.  This process keeps us well aligned during the hiring process so that we can address any issues or streamline our process to maximize our joint success leading to the offer stage.

On occasion, a client or a candidate will reveal a line of questioning during the interview process that could be discriminatory.  Generally speaking, these questions are usually quite naïve, with no prejudice meant.  They usually stem from a lack of education about what’s legal in the US.  Many times, the wrong questions come from a hiring manager or HR executive that has recently been deployed to the US to help build the organization here and are used to asking questions that may be perfectly OK in other geographies like Europe or Latin America.

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Here is a summarized guideline of typical questions that should never be asked during an interview:

Any types of questions that would divulge race, national origin or even citizenship are never a good idea.  For example, “Are you a US citizen?” is not OK to ask.  It is OK to ask a job candidate, “Will you be able to provide proof of employment eligibility in the US upon hire?”

If it is a job requirement to speak more than one language it is OK to ask, “What languages are you fluent in?”

Questions that could have something to do with religious affiliation are also off the table.  It is OK to ask a candidate, “What professional organizations are you affiliated with?” or, “Are you able to work on Saturdays?”  But such questions need to lead back to specific job requirements, so if the job does not require work on a weekend, this would not be a good question to ask.

Age-related questions are also best left aside since there are laws to protect older candidates.  It is OK to ask for birthdate on an employment application.

Marital status questions may come in the blunt form of, “Are you married?” to more subtle questioning like, “What do you and your wife like to do on weekends?”  Also, questions revolving around family status like, “Who do you reside with?” or “How old are your children?” are no-no’s.   All these questions are not legal, as well as questions about pregnancy or even plans for future pregnancy.

It’s OK to ask a job candidate if there is any commitment that may prevent them from performing the job function including being on time and handling specific tasks.

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Questions about physical health are also off the table like, “Do you have any health issues?” or “Do you have any physical disabilities?” Questions around needing any special accommodations to perform specific job duties such as, “Do you have any issues carrying equipment that can weigh over 20 lbs.?” are fine.

Criminal background questions such as, “Have you ever been arrested?” are not ok.  You can ask, “Have you ever been convicted of a crime?”

In several states it is now illegal to ask the job candidate about previous compensation such as, “What is your current salary?” or “What was your total compensation last year?”  There have been a lot of legal issues around these types of questions.  So, if you are not sure if it is legal in your state, it’s best to stay away from this type of questioning.  Of course, it is OK to ask candidates about the level of compensation they are seeking.

As a candidate, have you dealt with any questions that you believe are within an illegal context?  Or if you are a hiring manager or an HR executive that can add to my summary, I would love to hear from you!


Avoid legal trouble by asking the right interview questions