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Nailing the Interview

You can get into a lot of legal trouble when interviewing job candidates. Here are some basic dos--and one big don't.

Do Say the Job is "At Will." Make sure to state clearly that the position is at will, and that the candidate may be fired for any reason, or no reason. Do not promise that the individual will be employed for any specified period of time.

Do Get the Candidate Talking. The candidate should do 80 percent or more of the talking. That way, you will get the information you need (sometimes too much, which is actually a good thing because it makes it easier for you to weed individuals out), and you dramatically reduce the odds that you will say something stupid that the candidate can use as the basis for a lawsuit.

Do a Background Check. If you hire someone who later turns out to be violent, pathological or criminally inclined, you can be sued for negligent hiring. Do a thorough background check on each new hire--popular online services include amerusa-employment-screening.com, databaserecords.com and employeescreen.com--and don't forget to search the person's name on the web. If the position is a particularly sensitive one, consider hiring a private investigator to conduct a more thorough background check. To find one in your area, go to romingerlegal.com or privateinvestigatordirectory.com.

Do Have a Witness Present. People sometimes say crazy things when they've been turned down for a job. Have another employee or a trusted friend present during the interview so he or she can corroborate your version of events.

Do Check Their Immigration Status. Each new employee must fill out Form I-9 and provide you with two supporting documents, such as a driver's license, Social Security card, green card or U.S. passport, showing that they can legally work in the United States. Do not limit your hiring to U.S. citizens, as you are prohibited from discriminating against legal immigrants.

Do Consider Testing for Drug and Alcohol Abuse. Most states will allow you to test a candidate for drug or alcohol abuse before they start work, but you must make a job offer first. To learn more about drug testing laws in your state, go to drugtest-info.com/laws/index.html.

Do look at the ethnic and gender makeup of your work force when making hiring decisions. If you have 15 employees who are all white males, maybe it's time to hire a female or minority member to achieve greater diversity.

Do Remember the ADA. The federal Americans with Disabilities Act sometimes requires you to restructure a job so disabled people can qualify for it. If a disabled candidate can perform 90 percent of the essential job functions you're looking for, consider reassigning the other 10 percent to other employees so you can hire the individual.

Do Document Your Hiring Decisions. As soon as possible after completing a job search, dictate or jot down your impressions of each candidate's strengths and weaknesses while everything is fresh in your mind. Doing so creates a record that will be extremely valuable if you are ever sued.

Don't Discriminate. Do not say anything that reveals you are conscious of a candidate's race, ethnicity, sex, religion, disability, marital status or pregnancy, even if you mean well. Your only concern is: Is this individual the best available fit to perform the essential functions of the position? --Cliff Ennico

Cliff Ennico is a syndicated columnist and author of several books on small business, including Small Business Survival Guide and The eBay Business Answer Book. This column is no substitute for legal, tax or financial advice, which can be furnished only by a qualified professional licensed in your state.

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