When businesses navigate the complex processes of interviewing, hiring, and firing employees, they need to ensure their practices are both effective and compliant with applicable state and federal law. Below is an overview of some of the key legal considerations employers should use to guide themselves through each stage of the employment cycle. Understanding these requirements is crucial if employers want to reduce the risk of costly and time-consuming litigation, and foster a fair and inclusive workplace.
What Employers Can (and Cannot) Ask During Interviews
During the hiring process, employers should focus solely on the candidate’s qualifications and ability to perform the job. Therefore, avoid asking questions that could lead to even the perception of bias or discrimination. Laws such as Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), and various state laws and regulations significantly limit certain types of questions during the hiring process.
For example, employers should not ask questions about a job candidate’s race, religion, age, disability, gender, sexual orientation, or marital status. These types of questions are not only irrelevant to the applicant’s ability to perform the job but may also expose the employer to claims of discrimination or bias. Moreover, if a candidate volunteers this information, employers are best advised simply to not address it and move on to more relevant questions.
A few specific questions to avoid are the following:
“Are you planning to have children?”
“What church do you attend?”
“When did you graduate high school?”
“Do you have a history of medical or mental health conditions?”
On the other hand, there are permissible topics that an employer may ask about during the interview process, such as the candidate’s education, work experience, and whether they can perform essential job functions with or without reasonable accommodations (the latter question being related to disability, which deserves an entirely separate post). In some cases, asking whether a candidate requires a reasonable accommodation may be appropriate, but it should be asked consistently of all candidates to avoid any appearance of unfair treatment.
Treating all employees by the same standards regardless of who they are is a cornerstone of good employment practices.
Virtual Interviews and Remote Work Post-COVID
The COVID-19 pandemic permanently altered many employers’ workplace practices, particularly with regard to remote work and virtual interviews. Virtual interviewing certainly has advantages – primarily, easing scheduling and geographical constraints – but it also presents unique challenges. Employers must ensure virtual interviews are conducted with the same level of professionalism and compliance as in-person interviews. This includes avoiding inappropriate questions, documenting the interview process, and ensuring equal treatment of candidates.
Many employers need to address the rising trend of remote work. Statistics show that a large portion of the workforce now expects some degree of flexibility in their working arrangements, and a growing number of employees now work remotely or in hybrid roles. Employers who offer remote work options have a competitive advantage when trying to attract top talent. Additionally, under the ADA, employers may need to consider remote work as a “reasonable accommodation” for employees with disabilities, and engage in the “interactive process” to determine whether remote work is feasible for the employee’s role.
Documenting the Hiring Process
Thorough documentation of the hiring process is a critical part of defense against potential claims of discrimination or other wrongful hiring practices. Records should be maintained by employers that include all applications, interview questions, candidate responses, and any accommodations requested. Not only is this required by Title VII of the Civil Rights Act (which mandates that job applications be kept for at least one year), but it also provides a paper trail that can become valuable evidence if an employer is faced with defending against a discrimination or failure-to-hire claim.
Furthermore, detailed documentation ensures that an employer can show that its hiring decisions were made based on objective, non-discriminatory criteria, which helps to mitigate the risk of claims.
Best Practices for Termination
Unfortunately, the occasional termination is a part of the responsibility of every employer. Employers must therefore take pains to ensure the process is conducted fairly and lawfully. One best practice is to implement a Performance Improvement Plan (PIP) before considering terminating an employee, giving them a chance to improve their performance. This both gives the employee an opportunity to succeed and creates a record of the employer’s good faith efforts to help the employee – before resorting to termination.
If the employee still needs to be terminated, it is essential to clearly communicate the reasons for the termination. Vague or shifting reasons can create suspicion of discrimination or retaliation, which can lead to legal challenges. Some employers, in an attempt to minimize the adversity of the termination, will give inaccurate or incorrect reasons for the termination in a misguided attempt to let the employee down easy. The only thing this does is give the employee more ammunition if they later take legal action because it allows the employee to claim the reason for the termination was an unlawful “pretext” for a more discriminatory motive.
In some cases, offering a severance package with a release of liability may be advisable, particularly if the termination is not performance-based.
Exit Interviews
Although some employers do not conduct exit interviews, exit interviews can be a valuable tool for gaining insights into the workplace’s culture and even identifying areas for improvement. That said, exit interviews must be handled with care. If possible, they should be conducted by a neutral employer representative who has had minimal direct involvement with the employee, such as an HR professional. Employees should be reassured that their responses will be confidential. An honest exit interview can provide feedback that improves retention and reduces future turnover.
Conclusion
Navigating the legal landscape of interviewing, hiring, and firing demands that employers give careful attention to detail, as well as an honest commitment to fairness and compliance. By understanding and applying these principles, employers can limit their liability and create a more welcoming workplace.
Dye Culik PC is a Charlotte, North Carolina, business law firm that represents businesses in a variety of corporate law matters, including employment law. If your business wants advice related to interviewing, hiring, or terminating employees’ employment, contact us to see how we can help.
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