Legal Protections During a Job Interview

To what extent can a potential employer ask about medical history?

According to The Americans with Disabilities Act, employers are limited in the questions they can give applicants regarding medical history. The employer can communicate the responsibilities of the position and ask whether the applicant is capable of performing those responsibilities, but they cannot directly ask about the applicant’s medical history during a job interview.

That said, an employer may request further information from an individual once they have accepted a job offer if that information applies to a legitimate business reason. For example, a new hire who will be working in an Intensive Care Unit (ICU) can be asked about their history with infectious diseases to protect the unit’s patients. Any such questions must be narrowly tailored to meet the business requirements of that job and must be applied uniformly to all applicants to avoid discrimination.

The same conditions apply to questions regarding an applicant’s medical history with COVID-19. An employer can request an applicant’s COVID-19 vaccination status or recent test results, should they have a legitimate business reason to do so.

Prior to COVID-19, federal law granted employers the right to require vaccines for any number of diseases as long as they had a legitimate reason to do so. Because we are currently experiencing a global pandemic, and the federal government has declared that public health is at risk based on vaccination status, an applicant’s vaccination history is considered a legitimate concern for a potential employer.

Can a potential employer ask about criminal and credit history?

From a federal law perspective, an employer may ask about a prospective employee’s criminal convictions in a job interview. Under the Fair Credit Reporting Act, employers can be required to gain the employee’s prior consent. To avoid any potential instances of discrimination, an employer may implement a best practice that includes asking every applicant about their criminal history if that information is necessary for their hiring decision.

Several states have enacted their own legislation called “Ban the Box,” which restricts the general practice of employers asking about a potential employee’s criminal convictions.

To request credit information, an employer must get consent from the potential employee. They must have a legitimate business reason to request this information; this might include hiring an individual for an accounting or similar finance position.

Can an employer take social media into account during the hiring process?

An individual’s public social media activity can be considered by a potential employer during the hiring process. As a regular practice, it is in an individual’s best interest to review their public-facing social media accounts to remove any activity that may reflect poorly on them as an employee prior to starting their job search.

However, an employer cannot use information they glean from social media in their hiring decision if that information is based on a potential employee’s status in a protected class. An employer cannot disguise their identity to gain access to a potential employee’s private social media account, nor can they require potential employees to give them access to private accounts.

How much can a potential employer discuss with a previous employer?

Because most states are employment at-will states, former employers can speak freely about their experience with an employee. However, in modern practice, many employers are limiting the information they provide during reference calls to avoid any potential defamation cases. In North Carolina state law, there are provisions preventing employers from blackballing an employee, or unfairly restricting an employee’s employment prospects. For this reason, many companies have been moving away from requesting job references from their applicants and, instead, are requiring aptitude or stress tests to gauge a candidate’s potential performance.

It is also recommended that employers not weigh an applicant’s compensation at a previous job while determining their future compensation. Their former employer might have paid the employee an unfair wage due to discrimination against a protected class and perpetuating this pay discrepancy could put the new employer at risk.

How to Protect Yourself During a Job Interview

What red flags should an applicant look out for during their interview?

If a potential employer is asking questions related to an applicant’s participation in a protected class or asking for information that does not pertain to the job the applicant will be performing, then they may not have best practices in place for protecting their employees against discrimination. Additionally, if a potential employer expresses the expectation that an applicant will work overtime during a job interview, then the candidate should be cautious of the work culture and ensure that they will be paid appropriately for this work.

If an applicant feels they were not hired because of their participation in a protected class, they can reach out to an employment attorney to discuss further action.

How much can an applicant ask about compensation and benefits during the job interview process?

An applicant should feel encouraged to completely understand the position they are applying for and the compensation they will be receiving prior to signing a job offer letter. If a potential employer is not willing to give information regarding compensation and benefits during a job interview, that may be a red flag for the applicant that indicates the employer is not forthcoming about such information.

How much personal information should an applicant divulge to a potential employer?

In the case that a potential employee is concerned that their personal information may cause bias against them, it may be in their best interest to keep their answers focused on the job. If questions regarding personal information come up during their job interview, know why they are being asked before providing an answer.