The Hiring Process

Rob Wiley: My name is Rob Wiley, and I'm talking today with Colin Walsh, Austin employment lawyer. today we're gonna talk about the hiring process, getting interviewed, trying to get a job. Now, obviously, we have all these laws that are out there that cover employees, people that already have a job, but what about if you're looking for a job? Are there laws that protect you during the hiring process?

Colin Walsh: Yes, there are. In fact, it's the same laws that protect employees protect job applicants and people going through the hiring process.

Rob Wiley: So if you're looking for a job and it appears that the employer is only looking for younger workers or only looking for workers of a particular race would those be examples of violations of hiring laws?

Colin Walsh: Those would definitely be examples of violations of the laws that protect hiring and employees. An employer cannot discriminate in the hiring process based on the same laws that protect employees, so race, gender, disability, religion. These are the things that employers don't get to use as determinative factors in hiring decisions.

Rob Wiley: One of the things that sometimes we see, where people are having problems with the hiring process is that they, they get very close to getting a job, and then the new employer calls the references and one of them is the old employer, and maybe that person had complained to the Department of Labor or OSHA or made a sexual harassment complaint, and it always seems that once they check the references that job offer never materializes or it's withdrawn, as a lawyer what are your thoughts about that kind of situation?

Colin Walsh: My thought is that that is potentially retaliation, and I would urge anybody who thinks that that's happened to them to contact an employment attorney who's going to be able to look into the facts and determine whether or not you have a cause of action for that because blackballing or blacklisting employees can be retaliation, and an employment lawyer's going to help you discover whether that happened to you.

Rob Wiley: Okay, well, you know, different employers hire people in different ways, sometimes, there's written questions, sometimes there's interviews. Are there certain questions that an employer should not be asking an employee or a potential employer, someone who's applying for a job?

Colin Walsh: Generally, an employer should not be asking job applicants about disabilities, about their age, whether they're pregnant, things like that, now it's more complicated than that, and that is why I urge you to contact an employment attorney, but, generally, if they're asking about your protected characteristics it's going to be a violation of a law.

Rob Wiley: Yeah, I'd be very surprised, if an employer asked somebody where do you see yourself in the next few years and then asked a question, like, do you anticipate starting a family, and the person said, and then all of a sudden they didn't get the job, I would be suspicious of whether or not the employer took that question about pregnancy into consideration because if they didn't why would they be asking it in the first place.

Colin Walsh: I think that is a really good point, and that is definitely something that we see when people come into our office and talk to us is that they are asking questions like that to have a reason not to hire them, and that is against the law, and the important thing I think to note about your particular example is it doesn't just apply to women who wanna start a family or who may get pregnant but also men. If you decide not to hire a man because he wants to start a family that could just as easily be discrimination as deciding not to hire a woman because she wanted to start a family.

Rob Wiley: And hiring is actually I think a complicated area because there's other issues like, maybe doing a credit check, maybe doing a criminal history check which could potentially be discriminatory if they exclude classes of individuals, and then sometimes we'll see employers just do really bizarre things, polygraph tests, things like that, but those laws are I think more complicated than is easy to kind of explain in this setting, but I think that is something where you would definitely want to hire a lawyer or at least go in and consult with a lawyer. If you see something that doesn't pass the gut test, something that seems fishy.

Colin Walsh: That is definitely true, and a lot of cities or counties also have more specific rules and regulations regarding what can and cannot be considered in job applicants and in the hiring process, so I would definitely urge any job applicant to contact an employment attorney about these issues.

Rob Wiley: Thank you, Colin.

Colin Walsh: Thank you.

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