Employer: Job Applicant and Interview FAQs

• Can an employer refuse to hire a pregnant job applicant?
• Can an employer refuse to hire someone because of a criminal conviction?
• Can an employer require an applicant to take a polygraph test?
• Can an employer require psychological and drug testing for prospective employees?
• What questions can an employer ask in a job interview?
• What type of information can be gathered during a background check?

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Q: Can an employer refuse to hire a pregnant job applicant?

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• Under the federal Pregnancy Discrimination Act, it's against the law to refuse to hire someone because she's pregnant. An employer cant refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition, or because of the prejudices of co-workers, clients or customers.

  An employer can't require a pregnant women to submit to special procedures or tests to determine whether she can perform her job unless the employer requires all employees or applicants to submit to those same procedures or tests.

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Q: Can an employer refuse to hire someone because of a criminal conviction?

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• A: An employer may be able to refuse to hire an applicant based on a criminal conviction, but it depends on:
  • What the conviction was for
  • Whether it's related to the job in question
  • How long ago it was

  An example that might prevent employment would be if the prior conviction is theft-related and the job involves handling money. Many employers run a background check on potential employees, and it's a good idea to tell an employer about prior convictions if asked in an interview or application form. However, a job applicant usually doesn't have to disclose an arrest if it didn't lead to a conviction.

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Q: Can an employer require an applicant to take a polygraph test?

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• A: The Employee Polygraph Protection Act (EPPA) prohibits most private employers from using lie detector tests in pre-employment screening. The EPPA provides that employees have a right to employment opportunities without being subjected to lie detector tests, unless a specific exemption applies. Where polygraph examinations are allowed, they're subject to strict standards and rules, and specific notices must be given to prospective employees.

  Polygraph tests may be given to certain job applicants of security service firms (armored car, alarm services, and guards), as well as those looking for work with pharmaceutical manufacturers, distributors, and dispensers. Local, state, and federal governmental agencies (such as police departments), as well as public agencies (like school districts), aren't prohibited from giving the tests, either.

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Q: Can an employer require psychological and drug testing for prospective employees?

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• A: Psychological testing is permitted as long as the tests aren't designed to discriminate on the basis of race, color, religion, sex, age or national origin. But this is an area where employers must use extreme caution. A psychological tests requiring applicants to answer questions about their ancestry, religious beliefs, or sexual orientation may lead to lawsuits by applicants who aren't offered job. 

  The laws on drug testing vary tremendously from state to state. Some states allow them in limited instances, some not at all, and others allow all testing. Some states allow employers to refuse employment to anyone who won't take a drug test.

  Employers with questions about drug tests or any other pre-employment screening should check the laws in their state or talk to an attorney.

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Q: What questions can an employer ask in a job interview?

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• A: An employer may ask questions related to the job position, but not personal, private questions that don't have a direct bearing on a job-seeker's ability to do the job. Federal law forbids an employer from discriminating against any person on the basis of sex, age, race, national origin or religion, so many types of questions are out of bounds, like questions about:
  • Medical or disabling conditions
  • Marital status or plans to marry
  • Number of children or plans to have children
  • Religious beliefs (unless the employer is a religious-based organization)
  • Age
  • Sexual orientation
  • Date or place of birth
  • Arrest record

  There are ways for an employer to ask questions without violating federal anti-discrimination laws. For example, it may be safe to ask if there are any circumstances that might prevent the applicant from performing the job requirements.

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Q: What type of information can be gathered during a background check?

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• A: A "background check" can vary from one prospective employer to the next, depending on what the employer thinks is important to the hiring process. A background check can, and usually does, include a number of items, such as:
  • Criminal records
  • Credit reports
  • Driving records
  • Education records
  • Bankruptcy records

  For a potential employer to get an applicant's personal records, such as credit history or educational records, the prospective employee must give the employer permission to do so.

  If an employer's decision not to hire is based on information in the applicant's credit report, the employer must comply with all the notice and disclosure requirements of the Fair Credit Reporting Act. If a job applicant believes information on the credit report is wrong, he can notify the firm that ran the background check. The firm is then required to remove or correct inaccurate or unverified information within 30 days.