The Hiring Process: What You Should Never Ask

Date: December 4, 2014

Associations should exercise care when hiring new employees --   not only in selecting the right candidate but in avoiding questions that could create liability.   This can be especially important when boards of directors, who typically include directors with little to no experience in the human resources and hiring arenas, are involved in the hiring process.  Make sure to review these areas of inquiry with your boards to ensure they understand what they can and cannot ask in an interview or consider in the hiring process.

Depending on the job being filled, there may be a compelling reason to want to know whether the applicant has been convicted of any crimes – particularly crimes involving violence or theft if the applicant will have access to condominium units. 

While inquiries into convictions and arrests may seem reasonable at first blush, several states and localities have passed “ban the box” laws in recent years.  The “box” referenced is the one applicants are asked to check if they have ever been convicted of a crime, regardless of the nature of the crime, when it occurred or what relevance it has to the job for which they are applying.  Some of the recent changes to ban the box laws prohibit employers from asking about prior convictions (with some exceptions) and from conducting criminal background checks prior to a first live interview or conditional offer of employment.   

Even if your state or county doesn't have a ban the box law, employers should always avoid asking about arrests.  Before asking about convictions, make sure you know the limitations in your jurisdiction.    For example, in D.C., there is currently no prohibition, although this could change as ban the box laws pick up momentum. Maryland and Virginia prohibit asking about expunged or pardoned convictions.  Some local jurisdictions, like Baltimore, have already enacted legislation prohibiting inquiries into convictions.  When in doubt – don't ask.

What about health issues and family planning?  Associations need reliable employees who will be there as scheduled, particularly when they have very few employees.  Finding coverage for an employee who takes time off to have a baby or for a chronically ill employee who has frequent doctors' appointments can be a hassle.

In light of those issues, can you ask an applicant about their health or family planning?  NO!  Never, ever ask an applicant about their health or family planning as this information is protected from disclosure under federal and local laws, such as the Americans with Disabilities Act and the Pregnancy Discrimination Act.  Under no condition, should an Association ask an applicant about any of these topics.

Military Service:
There is no prohibition against favoring veterans in the hiring process.  However, if you are interviewing veterans, steer clear of asking what type of discharge they received (unless a security clearance is required as part of the job -- unlikely in the association setting).  Likewise, do not ask about disciplinary actions or post-traumatic stress.  While you can (but are not required to) give preferential treatment to veterans, employers cannot discriminate against someone because they served in the military.

Facebook, particularly when the person has not set privacy settings, can seem like a good tool to really get to know a candidate.  If you choose to look at public posts on Facebook, do so with caution. As a general principle, employers who review applicants' Facebook pages run some legal risks.  Why?  Because you may learn information you would not otherwise know in the application process – race, age, pregnancy, sexual orientation, and health information could all be discovered by simply reviewing an applicant's Facebook page. 

If the employer decides against hiring a person based upon information learned from looking at the Facebook page, liability could result.  Further, even if the applicant is not hired for reasons unrelated to their Facebook page, if the applicant knows their Facebook page was reviewed, the applicant might allege that the decision not to hire was based upon a protected factor discovered when looking at the Facebook account.   For applicants who have privacy settings on Facebook, employers should avoid asking for passwords or taking steps to get around the privacy settings.

Associations certainly want to make the right choice in selecting an employee who may have access to units and confidential information.  There are many questions that can be asked which will help determine whether an applicant has the requisite experience and is a good fit.  That said, as explained above, there are many questions that should never be asked.

If you have further questions as to what is appropriate in the hiring process, please contact Jennifer Jackman.