Hiring in Texas can be done in a very efficient and effective manner that reduces your chances of violating employment laws if you follow this simple hiring checklist. While large employers may need to add many more steps, I have found in 25+ years of law practice that many small employers aren’t even doing these simple steps, but should be:

• Is one well-trained centralized manager with human resources experience doing the hiring instead of a group of supervisors who might ask the wrong questions?
• Do you have a job description of the job for which you are hiring so you know the job-related qualifications?
• Did you carefully word your job advertising so as not to discriminate?
• If you require that an application be completed, is your application form up to date and without legal pitfalls?
• Does the interview focus only on job-related qualifications and not personal information?
• Do you stay away from open-ended questions like “Tell me about yourself”, which could elicit all kinds of information from the applicant that could be considered the basis of a discrimination claim?
• Is the interviewer using an outline so that each applicant is asked the same questions and you can compare apples to apples rather than relying on the interviewer’s conversation skills and “gut reaction”?
• Do not ask questions in the interview about the following topics. If this seems like a whole bunch of rules to remember, try focusing on this one rule: If your question isn’t related to how the applicant could perform the job duties, don’t ask it.
  • Race or color (photographs should not be requested)
  • Gender or marital status or sexual orientation
  • Whether applicant has young children, what his/her daycare arrangements are, or other family questions.
  • Age, including date of birth or when the applicant graduated from high school
  • Religion, including “Where do you go to church?” and “What do you do with your Sundays?”
  • Union membership or affiliation
  • Criminal arrests or convictions (you can run a background check if you decide to actually offer the job, but you must comply with the Fair Credit Reporting Act in obtaining the background check)
  • National origin or ethnicity (don’t ask about an applicant’s birthplace, accent, parentage, ancestry).
  • Citizenship (only inquire into an applicant’s eligibility to work in the United States, not their citizenship).
  • Education beyond what is necessary for the job (inflated educational requirements can have a chilling effect on minority applicants; therefore only ask educational questions that are relevant to the actual job responsibilities).
  • What clubs and organizations do you belong to? What causes do you support? (this could reveal illnesses, religious beliefs, family issues, marital status, race and other grounds on which you could be accused of discriminating).
  • Are you pregnant? Are you planning on having kids? (pregnancy and/or gender discrimination).
  • Have you ever declared bankruptcy? (discrimination under the Bankruptcy Act).
  • Is English your first language? Do you know that we have an English-only policy? (national origin discrimination)
  • Do you have elderly parents or an illness in the family that would take you away from work? (disability discrimination).
• Do not ask the following questions in an interview that could violate the Americans with Disabilities Act:
  • Whether an applicant needs a reasonable accommodation to perform the job, unless the disability is apparent or the applicant voluntarily divulges it.
  • Details of an applicant’s worker’s compensation history.
  • Whether the applicant can perform “major life activities,” such as standing, lifting and walking.
  • Whether the applicant has any physical or mental impairments.
  • Whether the applicant is taking prescription medication or any other lawful drugs.
  • If the applicant has used illegal drugs in the past or has ever been addicted to drugs.
  • Whether the applicant has participated in an alcohol or drug rehabilitation program.
  • How frequently the applicant consumes alcoholic beverages.
• Certain questions are permissible under the ADA:
  • Whether an applicant can perform the essential functions of the job.
  • How the applicant will perform the essential functions of the job, if all applicants are asked this question.
  • Whether an applicant needs reasonable accommodation for the hiring process.
  • Whether an applicant can meet the employer’s attendance requirements.
  • Whether an applicant has ever been convicted of driving under the influence of alcohol or drug if driving is an essential duty of the job.
  • Whether an applicant is a current illegal drug user (drug testing the successful applicant after a conditional offer of the job is the best way to handle this).

Once you think you have narrowed your choices down to the applicant that you would like to hire, you can make a job offer conditional upon the results of these items: Continue reading Simple Hiring Checklist for Texas Employers →