As part of our recent AsiaPac Virtual Conference, Jennifer Van Dale, partner of Eversheds Sutherland delivered a presentation on Leveraging Compliance to Drive Business. Jennifer heads Eversheds’ Hong Kong and Asia Pacific employment practice, representing employers and senior executives. Her practice touches on all aspects of employment work, from background checks to HR compliance issues to post-termination restraints.
The premise of her talk was to help recruiters, and by extension their clients, use legal compliance as a way to improve candidate experience and improve hiring. Good candidates will opt out of the hiring and selection process if they feel they are being asked inappropriate or possibly illegal questions during the interview. Jennifer shared some legal compliance tips that will help avoid these situations.
It’s easy to get tripped up on interview questions by trying to get necessary information in an non-compliant manner. So the first piece of advice is to make sure your questions are about the JOB, not the PERSON. Ask yourself if the information is relevant to the job. If not, don’t ask it. If it *is* relevant to the job, make sure you ask it in a compliant way. Remember that asking for information in a non-compliant way, if it’s not necessarily illegal, comes across as creepy and unprofessional. Job seekers don’t want to work for creepy, unprofessional employers and it’s best to avoid the reputational risk associated with being perceived that way.
Here are some compliance tips for common interview questions that can be legally troublesome (note: legal requirements vary widely around the world; these are sample scenarios and should not be misconstrued as legal advice):
- Are you a citizen? First, consider whether citizenship is relevant to the job. Sometimes, as with defense contractors or other national-security requirements, the answer is yes. Often, the information that really needs to be ascertained is whether the person can work legally. So a better way to ask that question might be, “Are you legally able to work in <country>?” Or, for a more detailed question, “Are you legally able to work in <country> without sponsorship?”
- Are there any special religious holidays where you can’t work? Questions about religion fall under legal protection in many parts of the world. Try this instead: “Are there any days of the year that you need off?” It’s valid to understand limitations on work availability, especially for jobs that require attendance on certain days or for certain hours. However, it may not be legal for you to know WHY someone isn’t available on a particular day or at a particular time. Note that religious declaration may be required in some countries in order to obtain a visa; this is not typically at issue until after an employment offer has been accepted.
- Do you have kids? This question has been taboo for a long time in many locations. It’s another question that can be used when trying to ascertain availability for work, but is definitely worded in a way that makes it more about the PERSON than the role. Some alternatives to consider include, “Are you available to work in <different city> for six months?” or “Are you available from 9AM – 5PM Monday through Friday?”
- What is your current salary? Avoid asking candidates about their current salary. Recruiters and employers in the US should by now be aware of a messy patchwork of laws governing salary history. Even if you are working with an employer in a country where it’s legal to ask about salary history, it may not be legal to ask a US-based candidate. Options include sharing the employer’s pay range and asking if the candidate’s desired salary is a match or asking about the candidate’s financial expectations. Be advised that information about current salary that the candidate discloses voluntarily may not be shared with the client.
Finally, the pandemic shifted many employees to work-from-home without much time to prepare for that. As employers grapple with whether to continue WFH, Jennifer recommends these compliance tips:
- Contact your HR professional to determine legal liability for injury, workers compensation, insurance and other requirements
- Contact your tax professional to ensure a tax liability isn’t created for employer or employee when a different physical location is involved – for example, a business headquartered in New York with WFH employees in Texas or France
- Contact your IT professional to assess cybersecurity risks associated with open wifi and other security elements that may differ in a residential environment
Please consult your attorney for legal advice that is specific to your needs. As mentioned above, laws around discrimination and privacy vary widely around the world. You may be best served by an attorney that is globally connected to ensure you are compliant with laws and requirements outside of your home country.