An “inquiry” is a question or other effort to seek information. “Pre-Employment Inquiries” are inquiries employers make to find out about potential employees, BEFORE they are hired. Many avenues exist to find out if an applicant should be hired—talking to the applicant, checking references, doing background checks, performing “Google” searches. Each of these raise legal pitfalls that can snare employers.
The Interview: Employers are legally obligated to make employment decisions (such as deciding who to hire) based on legitimate business reasons: work history, educational background, years of experience, special training, etc. Apparently innocent interview questions regarding other areas can run afoul of the non-discrimination laws. For example, a resume indicates the applicant speaks Spanish. She has an Hispanic surname, so the interviewer asks what country her family comes from? Perhaps, the interviewer is also Hispanic and was looking for something in common. However, national origin and ancestry are protected categories that cannot play a part in hiring decisions. An employer cannot fail to hire an applicant because he or she is from Peru, or Ecuador, for example. If this applicant does not get hired, he or she could claim it was because of national origin, based only on the fact that the interviewer asked. Rule of thumb? Don’t ask. If it is not business related, and deals with a protected category, don’t ask it.
References: Always ask applicants for references, and check them BEFORE making an offer of employment. Be prepared for the former employer to only confirm employment dates, however. You can ask whatever business-related questions you want when checking references. Former employers, being afraid of defamation suits, may not answer them. Read between the lines, and do the reference checks anyway or you could be liable for “negligent hiring.”
Background Checks: A good idea for positions of trust and those handling the business’s finances. Be sure to abide by requirements set by the Fair Credit Reporting Act (“FCRA”) and your local state laws.
Google Searches: On the one hand, if it is in cyberspace, the applicant can have no expectation of privacy about it, however such searches may reveal information (race, sexual orientation etc.) irrelevant to the hiring decision. An applicant participated in a Breast Cancer Walk in memory of her mother –revealing genetic information. Another stood with his father on the union picket line. Proceed with caution regarding obtaining such information from the internet.
Get help: Labor and employment lawyers help with all aspects of having employees. Get guidance when needed and avoid legal pitfalls that can lead to lawsuits.
