Hiring Tools and Information

Questions you can ask and questions you can not ask.

When making hiring decisions, employers routinely face risks arising under federal and state employment laws. Reviewing the answers to frequently asked questions relating to the hiring process may reduce the risk of violating applicable law. Below are several common questions about the hiring process and answers to those questions:

When can I use a medical exam in the hiring process?

The Americans with Disabilities Act ("ADA") is a federal law that prohibits discrimination against individuals with disabilities. The ADA, which applies to businesses with 15 or more employees, provides strict rules relating to the use of pre-employment medical exams. Ohio has its own disability discrimination laws that applies to employers of 4 or more employees. Generally, the rules for use of medical exams under Ohio law are the same as those under the ADA. As a result, even smaller employers need to be aware of and apply such rules.
Those rules are summarized as follows:

Pre-offer - Before an offer is made, employers may not require an applicant to take a medical exam;
Post-offer - An employer may make a job offer that is contingent upon the applicant successfully passing a medical exam. However, the employer may not refuse to hire an individual with a disability based upon the results of the exam unless the reason for the rejection decision is job-related and justified by serious business issues.
Employers should keep in mind that a test given to detect the current use of illegal drugs is not considered to be a medical exam under the ADA. Therefore, such a test may be given before an offer is made to the applicant.

What questions are off-limits during a job interview?

A number of laws come into play during job interviews, including the ADA, Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Ohio Civil Rights Act. The most important limitations to remember are:

Do not ask questions that seek information, directly or indirectly, about characteristics that are protected by law. The list of protected characteristics includes race, color, religion, gender, age, disability and national origin. Asking questions about a protected characteristic and not hiring the applicant increases the risk of liability for employment discrimination. This area gets tricky when the interview touches upon personal areas, such as education, military service, arrest record, which may be construed as an indirect way of getting prohibited information. Ask questions that establish whether the applicant can or cannot perform the job. A helpful resource is the Ohio Civil Rights Commission's "Guide for Application Forms and Interviews". You may obtain a copy of that information by calling the office of the Ohio Civil Rights Commission nearest you.

Do ask similar questions to all applicants for the same position. When interviewing applicants for the same position, ask each candidate similar, if not identical, questions. As an example, under state law a member of a "protected class" may be discriminated against if the prospective employer asks certain questions to one class of applicants and does not ask the same questions to a non-protected class of applicants.
While there are many other issues that may arise in this area, if you avoid these major pitfalls, you have gone along way toward reducing the risk of liability for employment discrimination.

How can I establish and preserve the "at-will" relationship during the hiring process?

Under the "at-will" doctrine, the relationship between an employer and employee may be terminated "at will" by either party at any time. If an employer and employee do not enter into an agreement that defines the length of time the employee will be employed, then either party can terminate the relationship for no reason or any reason not contrary to law, with or without notice. It is important to create and maintain the "at will" status of the relationship to ensure operational flexibility.
Creating an "at will" relationship starts during the hiring process in two areas:

Employment Application - Job applications should clearly provide that the applicant, if hired, is not employed for a definite period; that the employment relationship may be terminated at any time, by either party, with or without notice; and, that the only way to change the terms of the employment relationship is by use of a written contract signed by both parties.
Many pre-printed employment applications have some language to this effect, but it is an important issue to cover with a qualified human resources professional or legal counsel to ensure that such language provides you maximum protection.

Offer Letter - Use of an offer letter should notify the prospective employee of the "at-will" nature of the relationship.
Establishing and clarifying the "at will" nature of the employment relationship when an employee is hired will help head off unexpected liability in the future.

Additional Questions

Many of the questions below are based on restrictions placed by the Equal Employment Opportunity Commission, or EEOC, the agency charged with ferreting out and clamping down on violations. The theory, at least, is that some questions are forbidden because they might cause you to exclude an applicant because of a disability or other protected characteristic such as age, national origin, or religion.

If you're curious about...	You can ask...	You can not ask...
Name:	What is your full name? have you ever worked for this company under a different name?	What was your maiden name?
Residence:	Any question about the applicant's residence is permitted.	No questions prohibited.
Age:	Are you 18 years or older?	Any other questions about the applicant's specific age.
Birthplace:	No questions are allowed.	The applicant's birthplace, or where his or her parents, spouse or other relatives were born.
Gender:	No questions are allowed.	Have you ever had a sex change?
Marital/family status:	No questions are allowed.	Are you married? What is your spouse's name? Do you have any children?
Race or Color:	No questions are allowed.	Do you identify yourself more as black or African American?
Religion or Creed:	Are you a member of any church? What is your religious denomination? What religious holidays do you observe?	The applicant's birthplace, or where his or her parents, spouse or other relatives were born.
National Origin:	No questions are allowed.	What nationality is your last name? How did you learn to read & write, or speak a foreign language?
Citizenship:	Are you a U.S. Citizen? If not, do you have a green card or other authorization to work here?	Were you native born or naturalized? Are your parents citizens, too? When did you become a citizen?
Arrest Record:	No questions are allowed.	Have you ever been arrested but not convicted of any particular offense?
Education:	What schools have you attended?	What racial or religious affiliation were the schoos you attended?
Military Experience:	What experience did you have in the military that might relate to this job? What branch were you affiliated with? What rank did you attain?	What type of discharge did you get?
Membership in Organizations:	Do you have any experience as a volunteer or club member that may be related to this job?	Name all the groups and organizations of which you are a member.
Stress:	How well do you handle stress? Do you work better under pressure?	Does stress affect your ability to be effective on the job? Have you ever been unable to handle stress at work?
Disabilities:	Do you have the ability to perform this job, with or without accommodations? This job requires you to lift 40 lb kegs and carry them down two flights of stairs. Can you do that, with or without an accommodation? Do you have 20/20 corrected visions?	Do you have a disability that would prevent you from performing this job? Are you an alcoholic? Do you have AIDS? What effect does being in a wheelchair have on your daily life? What is your corrected vision? What is your uncorrected vision?
Physical Impairments:	How did you break your arm?	How extensive was the break--and will you likely have full use of your arm once the cast comes off?
Activities and Job Functions:	Can you lift three pound boxes and load them onto four foot shelves as this job requires?	Can you stand? Can you walk?
Attendance:	How many days were you absent from work last year? How many Monday and Fridays were you absent from work last year other than approved vacations?	How many days were you sick last year? How often will you require time off from work so you can obtain treatment for your disability?
History of Receiving Worker's Compensation:	No questions are allowed.	Have you ever taken time off from a job because of a work-related injury?
Drug Use:	Are you currently using any illegal substance?	What medications are you currently taking? Have you ever been on AZT?
Alcohol Use:	Do you drink alcoholic beverages?	How much alcohol do you drink weekly? Have you ever been treated for alcoholism?
Certifications and Licenses:	If the job requires it: Are you Certified to drive trucks interstate?	If the job does not require/involve Do you have a valid license?

PRIVACY STATEMENT