by Harriet E. Cooperman

Personnel responsible for recruiting and interviewing potential employees are frequently the only company representatives with whom applicants speak until the time she/he reports to work. The way these individuals conduct themselves, the questions they ask, and how they treat the candidate will directly reflect upon the company. Statements and actions by an unwitting manager, moreover, can result in significant legal exposure for the employer, and may bind the company to obligations well beyond any ever imagined.

All too frequently interviewers focus their attention on issues and questions that are proscribed by the law, and completely fail to inquire about other matters that could prove crucial down the road. Some common pitfalls follow:

Questions about disabilities
At the pre-offer stage, an employer may not ask an applicant (or his/her former employer) about any post or present illnesses, injuries, or impairments. This includes workers' compensation claims and drug or alcohol use and/or treatment. It is lawful, however, to explain the essential functions of the position, and ask the applicant if she/he can perform these duties and responsibilities. The caveat, however, is that all applicants must be asked this question, not just those who appear to have an impairment. Similarly, an employer may not ask about time missed from work due to illness or injury. The interviewer, however, may inquire generally into the candidate's past attendance record. The applicant then may choose to explain his/her absenteeism by providing information about a disability.

Job demands and commitment
Too often, women are questioned about family obligations and disabled individuals are asked about health issues and needs that the interviewer believes may adversely affect their attendance or commitment to the position. Such questions should be avoided. Instead, the interviewer should describe the job requirements, working hours, leave policies, and any attendance demands of the position to all candidates, and then ask if the applicant is able to meet these requirements.

Criminal records
Scrutiny of a candidate's criminal record should be performed for positions involving any interaction with the public, managing others, fiscal responsibility and trust, and high visibility. Failure to do so could result in a subsequent negligent hiring claim if a third party is injured by the employer's act, and it could have been avoided with due diligence. When inquiring into a criminal background, do not ask about arrests or expunged convictions, and check the applicable state law. Also evaluate the past offense in the context of its seriousness, nature, and timeliness before rejecting an otherwise acceptable candidate.

The personal touch
Instruct interviewers that an unlawful question is not rendered permissible by statements like "I know I shouldn't ask this, but?" or "just between you and me?" or "off the record?". In the courtroom, nothing said in the past is ever "off the record." Be careful and don't misled Your managers must be honest and accurate in describing the duties and responsibilities of, as well as the qualifications for the position. They should explain the company's expectations, philosophies, and environment. Material facts must not be omitted. If they are, and the candidate relies to his/her detriment, she/he may have a claim against the company for misrepresentation. Moreover, if in trying to convince the applicant to join the company, a manager makes unauthorized promises or overstates the terms and conditions, benefits, or compensation, the company may find itself bound to an obligation it never intended.

About the author: Harriet E. Cooperman chairs the Labor and Employment Law Group at Weinberg & Green LLC, and is a member of the Firm's Executive Committee. She focuses her practice on the representation of management for clients involved in manufacturing, wholesale, automobile, retail and service industries, as well as for public entities. Ms. Cooperman is the former Chairperson of the Section on Labor and Employment Law of the Maryland State Bar Association, and was also the Chairperson for the American Bar Association's Employer-Employee Relations Committee of the Tort and Insurance Practice Section. She also served as the first President of the Baltimore Women's Bar Association. Ms. Cooperman earned her undergraduate degree from the Cornell University School of Industrial and Labor Relations in 1975 and completed her Juris Doctor degree at the University of Maryland School of Law in 1978. She has written and lectured extensively on diverse labor, employment and commercial issues throughout the United States.

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