Hiring and the Law – Can I Ask About Pregnancy?

Devora L. Lindeman, Esq., Partner at Greenwald Doherty LLP, is providing us with insight and information regarding the hiring process. Ms. Lindeman is a management-side employment lawyer and has exclusively represented managers and companies in federal and state agencies and courts with regard to their labor and employment needs for many years.

Questions addressed to Ms. Lindeman may be addressed in this column.

Hiring and the Law
By Devora L. Lindeman, Esq.*

Question: I’m hiring for a job that will require extensive training to get the new hire up to speed and have gotten burned when a new hire did not disclose she was pregnant.  Can I ask the female applicants if they are pregnant, when I can’t have them go on maternity leave within their first year of hire?

Answer: No.  Interviewers cannot ask an applicant if she is pregnant, how many children she has, or if she plans on having more.  These questions can violate familial-status or pregnancy discrimination laws, and can also be discriminatory based on gender if you ask these questions of female applicants, but don’t ask the men.  You’ve raised a good issue, though. And, of course, employers often need to know that new hires are going to be there once training and orientation are completed.  But, you are looking to ask the applicant the wrong question. Think about what you really need to know.

It is perfectly permissible to ask applicants neutral job-related questions.  Ask questions that address your actual concerns.  In this case, your concern is that you are hiring to fill a need that requires specialized training to get the new hire up to speed.  So, ask that question.  And don’t be afraid to preface a question with the requirement.  For example:  “This role is key to the company and we have an intensive training program planned for the successful candidate that is a significant investment for the company.  We want to make sure that the candidate we chose will be here to fulfill this role after the training period.  We expect the training period to last [insert the number of months/weeks].  Of course, we understand that sometimes new jobs don’t work out and things change [note, this gives the company an out, too], but, at this point, if you are hired, is there any reason that you would not continue to work for our company without breaks for the foreseeable future/for[a specified period of time]?”

This question covers not only expected maternity leaves, but any other reason a person may know now that he or she could be planning to be absent, such as extended surgery, or even getting married and having a long honeymoon planned.  It is possible that an applicant’s spouse is job searching as well and interviewing out of state, or the applicant could be anticipating an international adoption, requiring travel and time off at a moments notice.  While there are some other potential discrimination issues lingering within some of those reasons as well, the point is that the employer should not care why the employee might be absent—it would only be concerned about the need for the employee to be present.

By asking the question that addresses the actual issue you are concerned about, it allows you to determine whether this applicant can fulfill all the requirements of the job which, in this case, includes an expectation of continual presence at work without an extended break for the foreseeable future.  When you focus interview questions on the job related need, it helps you avoid running afoul of the discrimination laws.  The tip?  Ask the question you really want answered.


*Ms. Lindeman is a Partner at Greenwald Doherty LLP, a law firm that exclusively represents businesses in all aspects of labor and employment law.  These columns are intended to be general information regarding the topic discussed and are not to be considered legal advice regarding a specific situation. Contact a management-side employment attorney familiar with the law of your jurisdiction for specific advice.  Ms. Lindeman is admitted to practice law in NY and NJ and may be contacted at DL@greenwaldllp.com.  She is under no obligation to respond to reader inquiries personally, but may answer general employment law questions through this column.

© 2011 Greenwald Doherty.  May not be reprinted without permission.

Your Existing Staff Can Help

If you have key staff whose opinion you value, here’s how they can help you make hiring decisions.

Put together a list of questions that ask about the functions of the post you need filled. Previous Hiring Tips gave several examples of these questions.

Type these questions out leaving ample room for the answers. Then ask each applicant to write down their answers to these questions.

After they’ve done so, assign a number to each form. You’re doing this so that your key staff will consider the answers without knowing the specific person

Then take the forms and discuss the answers with your key staff. The meeting could go like this:

“Okay, guys, here’s what we got from Applicant Number 4. In answer to the question, how would you handle a customer that wants to wait until the product goes on sale, Applicant 4 said he would tell the customer the product will not be on sale in the foreseeable future. Feedback?”

Is it crucial to get your staff involved in this way? Not necessarily, but your staff are on the ground floor and may have some keen insights into the answers given by the applicants. You may think Applicant 4 gave a great answer but one of your staff may provide another perspective that is helpful with the hiring decision.

Getting your staff involved in this way also increases their care and concern for the overall success of the business, which is always a good thing.

Describing What You Need and Want

An earlier Hiring Tip gave some examples of how you could word hiring ads. The wording was perhaps a bit unorthodox, but its intent was to let your applicants know you really are looking for people who want to make a real contribution to the growth and success of your business.

In earlier tips, communicating the purpose of the company was discussed.

In this tip, let’s discuss a bit more how you can clearly communicate to your applicants what you need and want.

Take a few minutes and review the position that needs filling. What would YOUR ideal candidate look like? The “perfect” person may not be out there, but then again, he or she may be looking for a different position, more pay, a different type of business, etc.

So, what are the ideal characteristics you want for the position? Here are some to consider:

Honest Trustworthy Dependable
Accountable Trainable Friendly
Competent On time Team-player
Problem-solver Enjoys challenges Not a complainer
Able to adapt Respects others Innovative
Creative Reliable Intuitive
Deliberate Cheerful Calm
Pro-active Attentive Extroverted
Communicates well Impartial Stable

 

The above is of course a partial list, but it should get your juices flowing as to what you feel are the ideal qualities for a given position. Not every quality is crucial of course to every position you need filled.

Determine what YOUR ideal qualities are and then present that to the world. Ideally your ideal qualities will bring you an ideal employee! Did I use the word “ideal” enough there?

Wording of Hiring Ads

How you word an ad should help filter the type of person who sends in a résumé or calls asking for an interview. Let’s look at a few ways you could filter this even more to increase the likelihood of the “right” person showing up.

You’re familiar with the phrases that have been used over and over: “team player,” “self-starter,” “hard-worker.” Here are few suggestions to spice it up a bit:

“If you’re here for just a pay check, we’ll most likely figure that out in the first week. If that’s you, no need to send us your résumé. We’re looking for people who will have a real interest in this company’s success and whose work will directly contribute to that.”

Another one along that same line:

“If your idea of work is a place to earn a paycheck, we’re probably not a good fit for you. If, however, you’re looking for a place to learn, grow and succeed with a group of like-minded people, give us a call.”

Here’s a short and very direct one:

“Clock-watchers, please do not apply.”

As you can imagine, there are many variations on the above. The idea is to add a bit to your ad so you can ideally bring a more committed and determined employee on board.

I realize two of the above suggestions are wordy and may be too long for an ad in the local paper. The next Hiring Tip covers how to give your prospective employees a great description of what you need and want.

What If Their College Credentials Are "Impeccable"?

Well, I guess we should first decide what “impeccable” is. The definition provided by the Longman dictionary says: “without any faults and impossible to criticize.”

If your applicant has a top-rate college education, what does that really mean to you?

Let’s say they even have a Master’s Degree or they studied hard and long enough to get a PhD.

If a person’s college education is of paramount importance to you, then a degree from Harvard or Yale will most likely mean more to you than a degree from a smaller, not-so-well-known college.

But the purpose of this tip is to analyze how important is the amount and quality of that education.

If the person is just coming out of college, do they have any experience at all in the job you need filled? Perhaps they did a long apprenticeship before graduating. Or will you be the one doing the apprenticing?

If they did do an internship of some kind, can you contact the supervisor to find out how they performed?

If they’re going to be applying their craft essentially for the first time with you, then you should definitely consider a trial period.

I believe the real test of an employee’s value is how productive they are and how well they work with others. A college education, even the best ones in the land, are actually no guarantee of how productive a person will be. And a great education will not assure you that the person will get along with your existing staff. Only daily participation in your work environment will tell you that. 

Most folks know that a great college education isn’t by itself an overpowering reason to hire someone. But sometimes we get a bit swept away by this part of an applicant’s resume. A great education can certainly be a plus, but don’t let it cloud your judgment. Focus on hiring people that are going to positive contributors in your workplace.

How Did They Handle Conflicts?

Sometimes employees have to deal with a particular type of conflict that can come up in the workplace:

The customer believes he is entitled to something but company policy does not permit it.

Here’s an example:

Sally has a coupon that expired yesterday. She says, “I wanted to come in yesterday, but my baby wasn’t feeling well and I stayed home to take care of him. This is the soonest I could come in and I’d really like to take advantage of the savings the coupon offers.” 

And she’s looking at the clerk with those big blue, pleading eyes.

Company policy is very clear: no coupons are honored beyond the expiration date. The owner of the company isn’t on the premises and has asked not to be called unless it’s super important.

What to do?

This is an interesting dilemma and is also a fruitful area to discuss during the hiring interview. You could even use the example above and ask what s/he would do in this instance.

You could ask the applicant to recall a couple of different situations where this type of “conflict” occurred and how they handled it.

Of course the applicant’s responses will likely be tempered by your views on this kind of thing. Do you feel the “company line” should be adhered to in all circumstances? Or do you feel your staff member should use good judgement to ensure the customer is well serviced? 

Either way, the answers you get on this will help you gain insight into your prospective employee.

Do They Have An Entrepreneurial Spirit?

Now that might sound like an odd quality to consider when hiring a new employee. Wouldn’t the “entrepreneurial” employee be inclined to go off on his own and possibly even start up a competitive company?

Sure, that’s a possibility. But there may be some real advantages to considering this quality when hiring someone.

First let’s take a look at the definition of entrepreneur:

Someone who is willing to assume the responsibility, risk and rewards of starting and operating a business. An entrepreneurial person is innovative and enterprising.

Are these qualities you’d like to see in your staff?

Some business owners would prefer their staff be very compliant, follow company policy to the letter and not get too creative or innovative with their duties. Fair enough. I respect that viewpoint completely.

But there are also business owners out there who like working with people who stretch the envelope. They enjoy the employee who comes up with a very creative approach to solving a business dilemma even if this approach involves some risk.

I think there’s something to be said for both sides of this coin. Following company policy is important, very important. But one can bring creativity and innovation to the workplace while also having a very healthy respect for company policy.

If you’re a business owner, then you’ve already got a strong dose of the entrepreneurial spirit within you. It may work to your advantage to have even more of that in your workplace.

Ask VERY Specific Questions

You can get a good idea of how someone will perform by asking very specific questions. You want to know how they’ll handle different situations that come up.

For example, if you’re hiring for an Office Manager position, here are some questions to ask:

  • A customer is complaining about their service to the person at the Front Desk. What do you do? Do you let this staff member deal with it or do you walk over and try to sort it out yourself?
  • One of your juniors is telling you that the owner is being unfair about salaries and schedules. How do you handle this? Do you inform the owner?
  • Your paycheck comes and you were overpaid by two hours. Do you simply put in for two hours less on the next paycheck, or do you let payroll know of the error? Do you inform the owner?

If you’re hiring someone to do collections for you, consider asking these questions:

  • How often would you contact the customer (or insurance company) when collecting on a bill of, say, $100?
  • If the bill were greater, would you change how frequently you call?
  • If the customer gets angry, what’s your strategy to get things simmered down?
  • How can you tell if the customer has little to no intention of ever paying the bill? How would you handle this?

Describe as many situations as you can with your prospective employees and then ask how would they handle each one. This will give you a clue to future performance.

Who Do They Think Is Successful?

Our major premise at The Employee Testing Center is:

“The more you know about someone BEFORE you hire them, the better your hiring decision will be.”

Many of these Hiring Tips discuss ways of finding out how the prospective employee would handle various work situations. We’ve also looked a bit more into the prospective employee’s personality. Both of these areas give us good information to help with the hiring decision.

Another question that you might consider asking is:

“Who do you think is very successful in life?”

If they ask you what do you mean by “successful,” you could reword the question to:

  • Who do you admire?
  • Whose opinion do you respect?

You’re basically looking for a person (or people) that your prospective employee admires or respects.

Ask the person to elaborate on why they admire a particular person (or persons).

The person may mention a world leader; or the person may admire a celebrity; or perhaps a parent or teacher. The person may be somone who has made major contributions, or it may be someone who is in the press for all the “wrong” reasons.

There’s no guarantee this line of questioning will be fruitful, but it may uncover a nice insight for you that will help you make your hiring decision.

How Does Your Applicant View the Future?

A great variety of questions can be asked during the hiring interview. In the following examples, you want the applicant to give you an idea of what the future looks like:

  • What do you see as growth potential for you personally with our company?
  • Where would you like to be in six months with our company? In one year?
  • Do you feel working for us is a stepping stone for something more important to you in the future? If so, tell me your thoughts on this.

Some applicants have not thought much about “the future” with a new company. Some are looking no further than to be gainfully employed, and there’s certainly nothing wrong with that. But some have a very definite vision of where they’d like to be and how much of a contributor they can be for you.

The above questions, and others like them, will provide some great insights into this area.

Note: I was asked not too long ago what “gainful” meant in terms of gainful employment. I have to admit I had to look it up in the dictionary. “Gainful” employment is work for which one is paid.

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