interview candidates

Interview Protocol

“To ask or not to ask?” That is the question.

The job interview has traditionally been viewed as a “get-to-know-you” session between employer and prospective employee, marked by a series of questions to determine whether the job seeker is a good fit for the position and/or company. While this is still largely true, rapidly evolving technology – including the explosion of social media, as well as ever-increasing government regulations – are changing the nature of this interaction on multiple levels.

“Historically, the interview process has been governed by state and federal anti-discrimination laws. These laws generally set forth the parameters on permissible and impermissible questions in a job interview,” says Patrick T. Collins, Esq., chair, New Jersey labor and employment group, Norris McLaughlin & Marcus, P.A. in Bridgewater. “While all of these laws are certainly still applicable to the interview process, there seems to be a constant stream of new laws and regulations that companies need to stay up to date on to ensure that the interviews are being conducted within legal boundaries.”

To navigate this rapidly changing landscape, employers can seek out a human resources professional or employment lawyer as well as consult the Equal Employment Opportunity Commission (EEOC) website for a look at national laws, regulations and guidance, or state Human Rights Agency guidelines for the local picture. For example, Collins cites New Jersey’s “Opportunity to Compete Act” – also known as the “Ban the Box” law – which prohibits questions regarding a job applicant’s criminal history during the initial application process. New York City and Philadelphia recently enacted ordinances that prohibit employers from asking about an applicant’s salary history, and while New Jersey has not yet passed such a law, some have argued that even asking for this information could lead to claims of gender discrimination.

“In addition to all of these rules and regulations, we then throw into the mix social media and the information available in these forums, and companies and their HR professionals have an overwhelming amount of information to be aware of when conducting job interviews,” Collins says.

No doubt, the world of social media can be a potential minefield for both employers and job applicants. According to Caitlin Petry Cascino, Esq., of Walsh Pizzi O’Reilly Falanga LLP, in Newark, employers are often tempted to use social networking sites as a tool for screening prospective employees before they arrive for an interview. And while a candidate’s social media account might uncover information that can lawfully be used – such as a LinkedIn profile that shows he or she has poor writing skills, or an Instagram photo that shows the use of inappropriate hand gestures – other information that reveals a candidate’s age, religion or sexual orientation is not permitted to influence a hiring decision. “Allowing those characteristics to impact the hiring process could serve as a basis for a discrimination lawsuit, which employers might have avoided in past decades when social media screening was not available,” Cascino says.

Modern technology also plays a significant role in the way interviews are conducted, as companies are increasingly using Skype and initial phone screens to gauge a candidate’s suitability for a role before deciding whether an in-person interview is warranted. “Such interviews save employers time and money, and, in some cases, virtual interviews will be the only interviews a company may conduct, so candidates should prepare for them as if they were regular, formal, in-person interviews,” says Amy Beth Dambeck, a partner with Constangy, Brooks, Smith & Prophete, LLP, of Lawrenceville. “Employers are also extending their use of social media to recruit candidates, and many are evaluating candidates on their individual professional social media presences – such as LinkedIn profiles or online portfolios.”

Within this brave new world of job interview etiquette, there are a number of common mistakes companies make, including not having the interviewer properly trained. According to Collins, companies should consider a formal training process for anyone who will interview job candidates that not only stresses the many legal issues, but also the importance of knowing details of the job as well as the candidate’s resume and background. “They should also be prepared to provide information to the candidates once the interview is over as to what they should expect as the next step in the interview process,” he adds.

It’s about asking well-crafted questions designed to “overtly or discretely” elicit from the candidate his or her ability to complete the essential job functions set forth in the job description, Cascino says. Problems may arise when interviewers become overly conversational or friendly with candidates, which can take away time and focus from job-related questions and answers. In the same vain, asking irrelevant questions that do not relate to the role can open the door for potential legal exposure.

“Often, interviewers will focus on the perceived personal characteristics of a candidate, rather than on the requirements of the position in determining whether or not the candidate would be a ‘good fit,’ ” Dambeck says. “This could get the employer in trouble.”

To avoid such trouble, employers should be aware of which questions are appropriate to ask during an interview – and which are not. According to Dambeck, interviewers can ask about a candidate’s past job performance and experiences; personal motivation and traits; professional goals (the famous, “Where do you see yourself in five years?”); and ask general questions designed to evaluate such things as a candidate’s communication skills, ability to work with others, handle stress, multi-task and make decisions. On the other side of the coin, don’t ask any question that will reveal information about an individual’s “protected class,” which in New Jersey includes race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy and sexual harassment), marital status, domestic partnership or civil union status, sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, genetic information liability for military service, or mental or physical disability, including AIDS and HIV-related illnesses.

There is often a fine line between permissible and impermissible questions – and knowing the difference is crucial. For example, Collins points out that you can’t ask a candidate if he or she has a disability, even if the candidate’s disability is obvious, but you can ask if he or she can perform the essential functions of the job with or without an accommodation. And while you can’t ask candidates about their religion, you can ask whether they can work on weekends, if these days are established and required work days. “Again, employers are well served to invest time and effort in training recruiters and instructing them that the only information they can use about prospective job applicants is that which addresses their ability to perform the job in question,” he says.


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