As a plaintiff employment law firm, we receive a substantial number of claims that stem from issues that could have been identified or addressed during the job interview process. The Noble Law firmly believes that individuals should know their rights as an employee from the moment they submit a job application to their exit interview and beyond. Additionally, it is just as important for employers to understand how to safely perform a job interview while communicating their company’s conduct and culture. A job interview should ideally be an opportunity for both potential employee and employer to discuss whether hiring an applicant will be a safe and mutually beneficial choice for both parties.
Want to know more about the legal ins and outs of job interviews and offers? The Noble Law Managing Partner, Laura Noble, sits down with our Firm Practice Manager, Beth McCubbin, to discuss frequently asked questions in greater detail.
What to Know Before Your Job Interview
Employment At Will
Most states are “employment at will” states, meaning an employer can hire or fire and individual for any reason as long as it is not based on the protected classes defined by federal law. These protected classes include age, race, sex (including sexual orientation and gender identity), disability, national origin, veteran status, genetic status.
For example, an employer can ask about and subsequently refuse to hire an applicant because they support a specific sports team. However, under Title VII and The Pregnancy Discrimination Act, an employer cannot inquire or act upon knowledge regarding an applicant’s pregnancy status or intention to become pregnant in the future.
Legal Definitions of Discrimination and Harassment
- Skin color
- National origin
- Gender and sexual orientation
- Disability status
Most federal laws that deal with employment only apply to employers that have 15 or more employees. In states that don’t have local laws that provide additional protection, where only federal law applies, employers with less than 15 employees are not bound by these prohibitions.
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.
Understanding and Accepting Job Offers
What is the difference between an exempt and non-exempt employee?
Under the Fair Labor Standards Act (FLSA), most people are eligible for overtime pay. A non-exempt employee is entitled to overtime pay should they work over 40 hours in one work week. An exempt employee is, as the name suggest, exempt from the provisions of the Fair Labor Standards Act. Though the number of hours you work do not factor into overtime pay, an employee is entitled to overtime pay if they are taking on responsibilities that extend beyond the role they agreed to perform.
Both employers and employees should be aware that under the Fair Labor Standards act, modifications to an employee’s work week, such as comp time or waived overtime, are prohibited in private employment.
What is the difference between a job offer letter and a contract?
A job offer letter and a contract are two different things. A job offer letter may request an employee signature, but it does not provide the same legal protections as a contract. A job offer letter can be used by both the employer and employee to reference what job the employee agreed to perform, what company values and rules the employee agreed to follow, and for what pay the employee agreed to work.
An employment contract is an enforceable document that details specific provisions an employer may provide, such as severance or equity in the company. A contract may also outline employee restrictions, such as a non-disclosure agreement, non-competition agreement, or non-solicitation agreement.
What should an employee look out for in an employment contract?
It is important that an employee read and understand any contracts that they sign prior to employment. Even if it may seem like a formality, any contract that an employee signs is a binding agreement that is enforceable by law. Common types of employment contracts include:
- A non-disclosure agreement (NDA) is a contract that prohibits an employee from using information they gain on the job outside of their current employment setting. Any information created for the purpose of the employer, including ideas and products created by the employee, is property of the employer and cannot be used for the benefit of another entity.
- A non-compete agreement is a contract that prohibits an employee from working in a certain setting or timeframe, as outlined by the agreement, after participation with their current employer is terminated.
- A non-solicitation agreement is a contract that prohibits an employee from soliciting their coworkers, vendors, or clients to engage with another employer.
To what extent can an employer expect a potential employee to live or work by their company morals and values?
Under Title VII, an employer with over 15 employees cannot treat an employee differently in the workplace because of their religious beliefs or lack thereof. An employer cannot make any adverse decisions about a current or prospective employee based on their religious beliefs.
Morals and values that are not directly tied to religious beliefs, however, are not affiliated with a protected class under federal law. Therefore, an employer may fire or fail to hire an individual if they refuse to adhere to morals and values that the employer deems necessary for their business practice. Generally speaking, in an at-will employment state, private employers can legally choose to fire or fail to hire an employee based on their political beliefs.
Speak With an Employment Lawyer Today
Have you lost an employment opportunity due to discrimination during the hiring process? Are you in the process of reviewing a job contract or do you believe a contract you have signed has been breached? The Noble Law is a women-owned employment law firm that is leveling the field for employees in New York, North Carolina, and South Carolina. If your legal rights have been violated in your current or potential workplace, reach out for a consultation today.