Interviewing candidates for a position in your company is a necessity for most employers in New York City, but can quickly turn into a legal minefield by asking the wrong questions or discussing the wrong topics. To avoid potential liability issues, there are some basic rules employers should know about during the application process and when conducting interviews.
Legal and Illegal Questions
Employers may ask questions regarding a candidate’s resume, education, and relevant topics related to the job. For example, it is legal to ask if an applicant:
- If they are 18 years of age or older;
- Can perform specific tasks in a reasonable manner;
- Has commitments that preclude them from meeting job schedules;
- Are a citizen of the United States, have the legal right to remain permanently, or are eligible to work during a specific period;
- Has served in the military, and, if so, has received a dishonorable discharge; and
- Has a valid drivers license (if it is necessary for the position).
However, many broad categories of inquiries are unlawful. For employers with four or more employees, application forms and interviews may not ask questions expressing limitation or specification regarding:
- Age (including inquiries designed to discover age such as “What year did you graduate?”);
- Race;
- Creed;
- Color;
- National origin;
- Military status;
- Sex (including gender identity and transgender);
- Sexual orientation;
- Disability;
- Marital status (including maiden name of a married woman);
- Predisposing genetic characteristics; or
- Domestic violence victim status.
Criminal History
The New York State Division of Human Rights states that an employer may not use an application form or make any inquiry about certain arrests and criminal convictions an employee may have received. Some restrictions include questions regarding:
- Youthful offender convictions;
- A conviction sealed by the court; and
- An arrest that is not pending and did not result in conviction.
Under New York law, private employers with more than 10 employees and all public employers are also prohibited from discriminating against an applicant based on criminal convictions unless a “direct relationship” exists between the specific job or opportunity at issue and the criminal offense. The nature of the conduct must have a direct bearing on the applicant’s fitness or their ability to perform one or more responsibilities or duties necessarily related to the job.
Producing Documents
Though an employer may verify information a candidate provides and ask for documents verifying their identity and right to work in the United States when they accept a position and begin work such as a passport or government ID and Social Security Card), there are unlawful inquiries that must not be made. Employers may not:
- Require production of naturalization papers, a birth certificate, or baptismal records;
- Require or offer applicants an option to affix a photo to their employment form any time prior to hiring;
- Require production of a driver’s license or
- Require names or identifying information of any family not employed at the company or an emergency contact.
New York Employment Lawyer
Increasing and ever-changing employment regulations make it more challenging for employers to lawfully manage a workplace and comply with all state and federal laws. To comply with proper hiring procedures, consulting the experienced employment lawyers at MOWK Law for preventative measures can save time, money, and countless legal headaches. Contact us today with your questions and let us help you stay on the right side of the law.