Hiring

Job Applications and Interview Guidelines – December 2007

The proper way of accepting job applications and conducting interviews for employees are often dealt with by a human resources department in larger employers but must be considered by the dentist or an office manager in a small employer such as a dental office. Generally, the obvious statement may be made that an application or interview must not handle non-job related issues that may invade the privacy of the applicant and reveal a protected status under many discrimination laws such as age, religion, sex, race, national origin, or disability. Other questions might be considered job related but can cause problems later.

For instance, there are questions concerning age that are frequently brought up in the hiring process and may unknowingly violate the Age Discrimination in Employment Age (ADEA). A statement that “you are overqualified for the position” may indicate a violation of the ADEA unless there is some other qualification that other candidates who are younger have that make hiring them a better choice. The protected class in this situation is any prospective employee who is 40 years or older. Asking an applicant for his or her birth date on an application is not a violation of the ADEA unless it is used as a qualifier for the position. One   of the most recent discrimination problems increasingly facing employers is the question of religious discrimination. The employer might run into problems if the prospective employee mentions during an interview or on an application that they cannot work on specific religious holidays or particular days of the week that the employee attends religious services on. If an employee for example requests Saturdays off for attending a religious service and the dental practice has Saturday hours, then that particular request cannot be the basis for not hiring the prospective employee. A reasonable accommodation must be offered to the employee such as morning hours if the service is held in the afternoon. Another example in the news recently is the wearing of head scarves as a part of a religious custom. Unless the dentist can show that the wearing apparel conflicts with the essential functions of the position such as interfering with dental equipment so as to create a safety hazard then discrimination based on religion will be evident.

Physical or mental disabilities are often a protected class that can be an issue on an application or during an interview. Questions concerning whether a person’s disability may interfere with performance on the job are generally illegal. If an essential function of the position cannot be done by the prospective employee, even with a reasonable accommodation, then the employer must not make a decision based on the disability, but rather on ability to perform the essential function. Asking whether an employee has ever missed work due to illness or a mental disability also creates legal problems.

Gender discrimination may be an issue in hiring employees because they are a man or woman. If the employer thinks that hiring a woman because they might be able to relate better to patients who are children is not an acceptable reason for making an employment decision.   Additionally, if an employee is asked whether she is pregnant or plans to have children while employed a violation may occur of additional statutes protecting pregnancy as an employment issue.

The dental practice should include some kind of release of liability at the end of a job application that must be signed by the employee before starting. This release should allow the employer to terminate the employment relationship at any time for any reason or no reason. There should be an authorization for the employer to contact any of the schools or colleges or references listed by the employee. The authorization cannot protect the dentist from asking questions about protected classes though, as the personal choice cannot override the laws allowing laws affecting discrimination, some of which are indicated above.

Copyright 2014 Hatch Legal Group. Design by Smart Ideas