Seyfarth Synopsis: Recent California legislation, including laws banning questions about salary history and criminal convictions, has bought new interview jitters for employers. These new laws, along with the Fair Employment and Housing Act’s prohibitions against questions going to an applicant’s protected status, confirms the point that there is such a thing as a “bad interview question.” In this ever-changing legal landscape, it is important for California employers to know what they can and cannot ask candidates in a job interview.

Although Michael Scott’s fictional character in The Office would have us believe there is no such thing as a “bad question,” that expression holds less true in California today than ever. California’s legislative updates in the last year have made job interviews more perilous than ever for the unwary employer.

The Legislature has recently introduced prohibitions on salary history and criminal conviction questions for certain employers. What is more, the FEHA prohibits questions like Michael Scott’s zinger, “Why are you the way that you are?”—a question that could go to various protected statuses, such as race, national origin, sex, nationality, and gender.

While such restrictions seem straightforward, implementing them is not always a no-brainer. Indeed, according to one survey, one in five hiring managers admitted that they have asked a question in a job interview only to find out later that it was illegal to ask.

So if you are looking to recruit for a temporary role, or hiring to fill the next coveted regional manager role at Dunder Mifflin, certain interview questions can have you breaking a sweat in California in 2019:

  1. Have You Ever Been Convicted of a Crime?

What used to be a common check-the-box question on employment applications is now illegal to ask before the employment offer stage. In late 2017, California joined several states in introducing “ban the box” laws to reduce barriers to applicants in the pre-hiring stage. Under AB 1008, California employers with more than five employees now must not

  • include on any job application questions that seek the disclosure of an applicant’s conviction history,
  • ask about or consider the conviction history of an applicant until he/she has received a conditional offer, or
  • consider, distribute, or disseminate information related to specified prior arrests, diversions, and convictions when conducting a conviction history background check.
  • San Francisco’s version of the “ban the box” legislation provides even greater protections to job candidates and includes stiff penalties for violations.
  1. How Much Do You Currently Make?

With the passage of AB 168, effective January 1, 2018, California employers must not ask job applicants for “salary history information” or rely on that information in deciding whether to offer a job and how much to pay. But if the applicant voluntarily discloses salary history, the employer may consider or rely on that information in setting salary so long as prior salary is not the only factor justifying any disparity in pay.

Under recent legislation clarifying the scope of AB 168, employers can ask about an applicant’s salary expectations for the position.

  1. Where Are You From?

The innocent icebreaker questions, “Where were you born?” or “Where are you from?” or “How long have you lived in the U.S.?” can land employers in hot water. Such questions, though seemingly offhanded, can be interpreted as questions about the applicant’s national origin.

Also, California’s Labor and Workforce Development Agency has made it clear that the state’s labor protections apply to all employees—regardless of their immigration status. Thus, you should stay clear of questions about a candidate’s citizenship (unless U.S. citizenship is a legal job requirement). You can, however, ask whether the applicant has a legal right to work in the United States, so long as you do not do so on a discriminatory basis.

  1. When Did You Graduate High School?

Questions about a candidate’s age are prohibited under both California’s FEHA and the federal Age Discrimination in Employment Act. Thus, employers should stay away from questions that could reveal a candidate’s age, like “What year did you graduate high school?”

You may ask a candidate’s age, however, if the job has a minimum age requirement, for example, if it involves serving alcohol.

  1. Are You Married?

Any questions related to parenthood or marital status are off limits. Prohibited questions include whether an applicant is married, pregnant, or plans to be in the future. Even the innocuous question, “What does your spouse do?” should be avoided as it could be seen as a round-about way of getting to the candidate’s marital status. It’s perfectly OK, though, to ask such questions after the candidate has been hired.

Workplace Solutions:

You may find yourself at an interview in the predicament Michael Scott describes best, “Sometimes I’ll start a sentence and I don’t even know where it’s going. I just hope I find it along the way.” Often people develop an easy rapport at an interview, making it hard to “unsay” questions—even illegal ones. Take note of the following guidelines to ace that next interview so you can indeed be the “World’s Best Boss.”

  • Read the fact sheet developed by California’s Department of Fair Employment and Housing, which offers guidance on questions employers can ask applicants.
  • To the extent feasible, prepare questions in advance, to help avoid drifting off into forbidden territory.
  • Train job interviewers and HR personnel on what interview questions are illegal and improper.

If you have any questions about this guidance or about illegal pre-hiring questions in California, feel free to contact your favorite Seyfarth attorney.

By Robert Milligan and Joshua Salinas

As companies face increasing competitive and financial pressures, management is understandably consumed with running the day-to-day operations of the business and working to achieve business objectives and maximize the bottom line. As a result, it is not uncommon for companies to find themselves in situations where important assets are overlooked or taken for granted. Yet, those same assets can be lost or compromised in a moment through what is often benign neglect.

Authoritative sources estimate that companies lose hundreds of millions of dollars (if not billions) as a result of trade secret theft. At the same time, companies sometimes find themselves, through poor controls, exposed when they inadvertently obtain others’ trade secrets.

In the rush to deliver results, some companies take shortcuts in the hiring and departure process that often leave them exposed to claims for trade secret misappropriation, aiding and abetting breaches of loyalty, and intentional interference with contractual relationships or business expectancies with customers or employees.

California’s strong public policy against certain employee noncompetition agreements and post-termination restrictions on employee mobility means strong trade secret protections are essential for California employers to protect against the unlawful use or disclosure of valuable company information and related competitive issues when key employees join competitors. Accordingly, while non-competes may be void in California, prudent companies conducting business in California will ensure that their trade secret protection practices are state of the art, including their onboarding and offboarding process.

In this second video of a two-part series (see part one here), we illustrate some best practices when interviewing a competitor’s employees, as well as handling your own employees’ departures, regarding the protection of trade secrets and other confidential information in California.  During the video, a prospective candidate offers to share during his employment interview his current employer’s trade secrets regarding sensitive business and customer information for the Southern California market. You will also see how the employer handles the exit interview of that employee.

When watching the video below, consider the following:

  • How does the interviewer avoid the applicant’s disclosure of  trade secret and other confidential information and focus the candidate on general skills and knowledge?
  • How does the prospective employer condition its offer of employment?
  • How does the current employer try to protect its trade secret and other confidential information with departing employees?
  • What type of policies and procedures do the current employer and prospective employer put in place to better protect themselves?

Click below to discover some of the best practices illustrated in the video and in general to protect trade secrets.

Continue Reading Best Practices for Interviewing Competitors’ Employees and Dealing with Departing Employees

By Robert Milligan and Joshua Salinas

California is a unique jurisdiction because of its public policy against certain employee noncompetition agreements and post-termination restrictions on employee mobility. This general prohibition against noncompetes with employees  leaves trade secret laws as the primary mechanism for employers with California based employees to protect against the unlawful use or disclosure of valuable company information and related competitive issues when key employees join competitors.

Yet many employers fall short in protecting trade secrets through the inadequate handling of employee departures.  Moreover, many companies fail to understand the potential liability that may arise with the unlawful acquisition of a competitor’s trade secrets when interviewing and onboarding a competitor’s employees.

In this first video of a two-part series, we illustrate some bad practices when interviewing a competitor’s employees, as well as handling your own employees’ departures, regarding the protection of trade secrets and other confidential information.  During the video, a prospective candidate offers to share during his employment interview his current employer’s trade secrets regarding sensitive business and customer information for the Southern California market.

When watching the video below, consider the following:

  • What concerns do you have about anything the interviewer did?
  • What concerns about what the prospective employee did?
  • How about the current employer?
  • What type of policies and procedures could both the current employer and prospective employer put in place to better protect themselves?

Click below to discover some of the bad practices illustrated in the video. Continue Reading Bad Practices for Interviewing Competitors’ Employees and Dealing with Departing Employees

By Laura Maechtlen and Kristen Verrastro

We’ve all been in this situation: you’re trying to get to know someone better, so you ask that person a seemingly innocent question which inadvertently elicits an answer you wish you could have avoided!  If this happens in a social setting it’s unlikely to create a big problem, but if this type of scenario occurs during a hiring interview, what was intended as a friendly or innocent question could turn into a potential liability. 

Employers in California should remember that California’s anti-discrimination statutes include more protected characteristics than federal laws and many other states. Various federal laws prohibit discrimination on the bases of race; color; religion; sex; national origin; citizenship; pregnancy, childbirth, or related medical condition; age , mental or physical disability; and genetic information.  California adds to this list:  creed; ancestry; medical condition; marital status; gender; gender identity; gender expression; and sexual orientation.  Also, California prohibits asking about arrests that did not result in conviction, except you can ask about arrests for which the person is out on bail or on their own recognizance pending trial. 

Additionally, California protects employees and job applicants based on a perception that an individual possesses any of the protected characteristics, or that an individual associates with a person or group that is protected by the anti-discrimination statutes.  As such, to avoid potential liability stemming from California’s expanded statutory protections, it is important to focus your interview questions on the job and its requirements.

Employers in California should avoid these types of seemingly innocuous questions during an interview:

  • Are you married or planning to get married?  Where does your spouse work?
  • What are your plans for a family? Do you have child support obligations?
  • Have you ever changed your name? 
  • When did you graduate from high school/college? Are you a recent graduate?
  • With whom do you live?  Do you live with your parents?
  • When did you serve in the military?  For how long?  How were you discharged?
  • Where were you/your parents born?
  • In what languages are you fluent (unless required by the particular job)? What is your first language?  How did you learn a foreign language?
  • To what clubs or societies not related to work do you belong?  Do you belong to any religious organizations? 
  • Have you ever seen a counselor or psychologist for any reason? 
  • Have you had any medical problems?
  • What is it like living with        ___ (e.g., blindness, a prosthesis, fill-in-the-blank with other visually perceivable disability)?
  • How many days of work did you miss at your last job?
  • Have you ever filed an application for Workers’ Compensation?
  • Have you ever been arrested? 
  • What is your FaceBook (or any social media account) password, or content?  Why don’t you open it up for me right now so we can take a look? 

A good general rule is this: information acquired and requested through pre-employment screening should be confined to what is necessary to determine if an individual is qualified for the position.  

Happy hiring!