W2 Issues/Concerns


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How to avoid asking the interview questions that can get you in trouble

When interviewing a job candidate, you know there are certain lines of questioning that you must simply avoid. Obvious examples include asking a candidates age, religion or political views. But sometimes even a seemingly innocent question can land you in legal hot water.

Below, we outline 6 question types that can get you in trouble and offer alternative suggestions for still garnering the information that you need to help pick the right man (or woman) for the job!


Don’t ask: Will you need personal time off? Can you work Sundays?
Do ask: Are you able to work our required schedule or take on some overtime?

The ‘don’t’ ask’ sounds innocent enough, but it may result in an answer that could cross the line in terms of legality. What if the candidate is three months pregnant, or may need time off to care for a sick family member? If you don’t hire the applicant, they could file a bias or FMLA claim. Asking a candidate if they could work Sundays, meanwhile, could violate religious discrimination laws. As a general rule of thumb, avoid any questions about holidays that could wind up as a religious disclosure.


Don’t ask: Do you suffer from any medical conditions?
Do ask: Are you able to perform the specific functions of this position?

Making a decision on employment based on someone’s health or perception of health marks a distinct violation under the American’s with Disabilities Act (ADA). Asking if someone can perform the duties of the job is allowed, provided you are upfront and honest about what those duties entail and are able to provide accommodations should they be required for an applicant with disabilities.


Don’t ask: Do you smoke / drink / take any drugs?
Do ask: Have you ever been disciplined for violating a company policy?

You’re allowed to ask if legal company policies can be expected to be followed. However, if you ask about general drug use, you may open the door to a disclosure about medication, conditions or disabilities, which you DO want to avoid.


Don’t ask: Do you plan on having children?
Try asking instead: What are your long-term career goals?

For starters, asking about career goals is a better question and will provide much greater insight into the candidate and their motivations for joining your company. Asking about their plans for children, however, is highly illegal if you do act upon it.


Don’t ask: Do you have a husband/wife or a girlfriend/boyfriend?

While this question is often asked innocently to connect with the candidate on a personal level, it can be easily misinterpreted as digging for info on a candidate’s sexual orientation. Instead, it is just smarter to avoid any questions about a candidates personal life.


Don’t ask: Where do you live? How long is your commute?
Do ask: Can you work these hours?

While the first question is a round about the houses way of asking whether a candidate is going to be able to make that 8am shift, it’s better to be forthright as it can lead to accusations of discrimination based upon where someone lives. However, you can ask if a candidate is willing to relocate for the job should it be required for the position.


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