When you interview a candidate for hire at your company, you likely have a list of questions you plan to ask him or her. This list can be as simple as why the candidate wants to work for you, or substantially more complex. It is not uncommon for interviewers to ask a question during an interview only to discover later that the answer to the question included information companies are not supposed to obtain during an interview. California has a list of off-limits topics which cannot be touched during the interview. As many companies begin interviewing new graduates for positions, this list should be reviewed before compiling questions for the candidates.
1. How old are you?
Beyond confirming a candidate is of legal age to be employed by your company, questions either directly or indirectly aimed at discovering the candidate’s age should not be asked. One innocent way this topic may be stumbled upon is asking a candidate when he or she graduated high school. In doing so, you are able to calculate when he or she was born and thus, his or her age. Although you may be able to make an estimate as to the age of a candidate, you may not ask directly.
Similarly important, you may not advertise jobs as open only to a certain age group. This can include using advertising algorithms to have your posting reach only certain demographic groups, or by simply stating your preference for a certain demographic within the job posting. Of the latter, the California Labor and Workforce Development Agency provides examples of inappropriate qualifiers, such as “college age” or “digital native.
2. Where were you born?
Questions which could reveal a candidate’s immigration status are off-limits. This is especially important to remember for employers in Southern California who may be interviewing persons who currently live in or have immigrated from Mexico or Central or South America. The California Labor and Workforce Development Agency has clarified that regardless of immigration status, California’s labor laws apply equally to all persons employed in California. This means all laws prescribing what topics may and may not be broached during an interview apply to all persons being interviewed in California. You may, however, ask the candidate whether he or she has a legal right to work in the United States to ensure the candidate may actually be hired.
3. Have you ever been convicted of a crime?
A question that used to appear on just about every job application, a candidate’s past convictions are now not to be considered in hiring. We discussed California’s “ban the box” law which went into effect on January 1, 2018, in a past article. While you will be allowed to run a criminal background check after extending a conditional offer of employment to a candidate, you may not probe into a candidate’s criminal history during an interview.
4. Are you married? Do you have kids?
Whether a candidate is married, has children, or is planning to have children is off-limits during an interview. Although this may seem like small talk, questions about familial status which reveal information that could lead to potentially discriminatory decisions should not be asked. Questions aimed at this information can be phrased in many ways. Regardless of the phrasing and how innocent it may seem, these questions must be avoided. This type of information may certainly be discussed once the candidate has been hired.
5. What are you currently being paid?
Another question which is almost expected to be asked during an interview is the candidate’s current salary. This question and the information being sought may only be discussed upon the candidate volunteering the information. We published an article discussing this rule in more depth here. Employers may not inquire about the previous salaries of the candidate, but should determine the salary which is commensurate with the candidate’s experience and his or her expected performance in a certain position.
When reviewing this list, it may become clear that the underlying intent of California’s off-limits topics is to eliminate actual or perceived discrimination in the hiring process. Keeping this policy in mind when interviewing candidates may help you avoid asking these questions as well as others which were not included here. (A more comprehensive list of off-limits topics is provided here.) It is important to review these topics with any person who may be conducting interviews for positions within your company to ensure they are avoided. If you would like to discuss your company’s interview questions or overall hiring process to ensure you are not inadvertently breaking the law, contact Navigato & Battin.