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E11: Legal and Illegal Interview Questions

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Host Thom Jennings and resident expert Kathleen Jennings welcome their first guest, Thom Jennings Jr. from Selective Staffing solutions. The group discusses job interview best practices, and offers advice on how to avoid a potential legal problem during the interview process.

Podcast Episode Transcript

Narrator (00:03):
You are listening to Cover Your Assets, a podcast that discusses the timely and significant legal issues faced by employers. Kathleen Jennings is an attorney who has over 30 years of experience in advising employers as to their legal responsibilities and has written extensively about employment law in our popular Cover, your Assets Blog. If your business has employees you cannot afford not to have your assets covered.

Thom Jennings (00:31):
Alright, hello everyone and welcome to Cover Your Assets, the Labor and Employment Law Podcast. And before we begin, I want to thank everyone that has subscribed, that has shared, and as always it looks like our numbers are going up. And of course I am here with our resident expert,

Kathleen Jennings (00:51):
Aka hey Thom,

Thom Jennings (00:52):
Aka a attorney Kathleen Jennings. How are you today, Kathleen?

Kathleen Jennings (00:57):
Doing great, Thom. So, which of our podcasts is our number one rated podcast? Have you had a look at that?

Thom Jennings (01:06):
I have. And, and, and usually you look at the ratings over the last 30 days. So this, the, the one that is actually on the top of the list right now, is it, it it, they say It's your birthday, which I thought was a great episode. And it actually,

Kathleen Jennings (01:18):
It was a great episode. It

Thom Jennings (01:20):
Finally overtook the the Workplace Romance, which was

Kathleen Jennings (01:26):
Another good episode,

Thom Jennings (01:27):
Which was number one for a while. I think this one's gonna be a great episode. And today, which this is our 11th podcast episode, it is also the first with a guest,

Kathleen Jennings (01:38):
A guest. Is it guest? Someone that I know. Thom,

Thom Jennings (01:41):
It is someone that you know, it's a name familiar to you because it, it indeed this person shares a name with not only our father, but with your brother, which is Thomas Jennings, Mr. Thom Jennings. The th we call you t3. How are you today, sir?

Thom Jennings Jr. (01:58):
I'm good. I, I I mean, t3 you haven't used too often, Thom Jr. The irony is, is that a couple people have found your podcast from me sharing it on LinkedIn and have thought it was me. And I've, I've, I have to admit, I've been shamelessly taking credit in a couple circles. So it was only a matter of time before I actually appeared on this thing and stopped pretending I was you.

Thom Jennings (02:23):
And in terms of Shameless promotion, you know, Kathleen, who is who is your aunt also has said, you know what, this guy's got a pretty big following amongst certain types of people. And why don't you just give us a quick introduction as far as we know, you're, you're my son and, and her nephew. But, but what, why, why do we bring you here today? And, and what is your area of expertise when it comes to labor and employment?

Thom Jennings Jr. (02:47):
I mean, other than being your son and Kathleen's nephew, I don't think there's anything more important than that in terms of credibility, correct?

Kathleen Jennings (02:57):
Well, that is an awesome answer. I, you know what? That, that is why in addition, having my favorite brother on this podcast, I now have one of my favorite nephews,

Thom Jennings (03:09):
Very diplomatic of you. You can tell that you're an attorney. Well, listen, I'm gonna, I'm gonna just say it for him. Thom works for a company in Buffalo, New York, and he is what, well, the, the old term that they used to use is headhunt, and I believe the, the more proper terminology now is executive recruiter. And what's the company that you work for in Buffalo? And maybe just give us a, a little bit of background of the types of people that you work with on a regular basis. Yeah,

Thom Jennings Jr. (03:38):
So we still use headhunter. It, it has some, some negative connotations. I'm not sure why, but, but I embrace the term, you'll, you'll find it on my LinkedIn. I, I describe myself as, as headhunter. Some people call us recruiters. You can throw fancy words at us, like Talent Acquisition Specialist, which I, I think sounds pretty neat. Or my formal title, the one that lands on my business card is executive Recruiter. But yeah, I work for a company now, selective Staffing Solutions, specifically, I spearhead their executive search division under the brand named Albert's executive search which is named after Michelle Alberts, who is who founded the firm about 16 years ago. But I am, I'm a generalist. A lot of, a lot of folks in the executive recruitment space find a niche. There is, you know, folks out there that specifically, they only recruit human resources or they only recruit supply chain or engineering. I really I touch a little bit of everything right now. I'm working on a Chief Human Resource Officer search. I'm also working on a director of administrative services search and a staff accountant and, you know, dozens of others that are really all over the map. So I'm blessed to touch a lot of different fields and talk to a really wide variety of of professionals out there.

Thom Jennings (05:04):
And, and really the reason that we, that we have you on today, because with the theme of the Cover Your Assets podcast is we, we talk about companies that potentially get in legal trouble when it comes to HR issues. And one of the most important, if not the most important function that a human Resources professional engages in on a day-to-day basis other than managing benefits, is a, is interviewing clients. And I, you

Kathleen Jennings (05:31):
Know, applicants, we'll, we'll say interviewing applicants Thom,

Thom Jennings (05:34):
I, well, in his case, they would be

Thom Jennings Jr. (05:36):
Potential like candidates.

Thom Jennings (05:37):
Yeah, candidates,

Kathleen Jennings (05:38):
<Laugh> candidates.

Thom Jennings (05:40):

Kathleen Jennings (05:41):
In the process, human talent

Thom Jennings (05:43):
In the process of trying to acquire human talent and applicants, you obviously, there's many, many laws that you have to, to respect and have to be very careful, or you could set yourself up for a lawsuit. So I guess in simplest terms, there's questions that you can ans ask and there's questions that you cannot ask that will get you into trouble. And I guess we'll start with, with a, you know, a few of them and I'll throw at you. And then Kathleen and Thom Jr. You guys can kind of go back and forth in terms of either, you know, how, how, how you can carefully broach these things without getting into trouble. Now, the big one I always think of is age. So you don't wanna be in a position where you are accused of age discrimination. So I believe I'm correct that you cannot ask a potential employee their age. Is that correct?

Kathleen Jennings (06:36):
What, what, what the law really says, there's no law that says you can't ask an applicant their age, but what the law says is that you cannot discriminate on the basis of age. So if you are asking someone for their age and their age has nothing to do with their ability to perform the job, then that could be evidence that you are looking to discriminate against a certain class of people because of age. So really, when we're talking about what you can and cannot ask, you wanna start with basic questions that concern a candidate's ability to do the job. What are the functions of the job? What are the duties of the job? And you wanna focus on whether that person you're talking to can or cannot do the job. You don't wanna ask questions about things that have nothing to do with the job, and that could ask for information that could be considered discriminatory.

Kathleen Jennings (07:44):
You, you don't ask women of childbearing age when are you planning on having kids, or are you planning on having kids? You don't ask people their age. You don't ask people where they were born or what country they were from. If they have an accent you can ask people if they're legally able to work in this country, because that's a legal question. So you have to differentiate between what do I need to know in order to determine if this person can do the job? And what kinds of things do I not need to know? Because really it just looks like I'm discriminating. And the E E O C on their website, e e has a list of topics and types of questions that you can look to for point of reference for the kinds of things you can and cannot ask. I see Thom Jr nodding his head. So he, I believe, as someone who probably engages in a lot of interviewing, is familiar with these parameters. What say you Thom Jr.

Thom Jennings Jr. (08:55):
So the, the funny thing is, is when I, when I, the clients that really get in the most trouble when it comes to age discrimination, it's not so much about the questions they're asking as much as just the statements that are coming out in an interview, right? So, you know, maybe they didn't outright ask you know, how old are you, right? But they might make a comment. They might say, well, you know, you are a little older than most of the people here. Most of the people in our sales department are, you know, fresh outta college. You know, those are, those are statements that can come out and interview that, you know, can be interpreted as age discrimination. And you never even asked a question. I, my, my general rule of thumb, and, and, you know, when I onboard a new client and in the agency recruitment space, I'm playing both sides of the fence.

Thom Jennings Jr. (09:49):
And, and what that means is I have my clients who are employers, and they hire me to find people for their positions. So those are my candidates. But a lot of times those clients, you know, especially folks, maybe smaller businesses that are newer to interviewing, will ask, you know, what types of questions should I be asking? You know, what are things, and this always comes up, what are some things I shouldn't ask? You know, what, what are some things I should stay away from and without over complicating it, I kind of joke with them. I say, if you just met somebody in the, in the grocery store for the first time and you think it would be inappropriate to ask that, it's gonna apply here. You wouldn't walk up to, if Kathleen, if I didn't know you and I ran into you in the grocery store, I sure as heck wouldn't walk up to you and be like, oh, how old are you? Oh, do, do, oh, are are, are you pregnant there? There's one you would never ask. Right? You know, a lot of those things that seem like common sense, you just have to apply them to the interview process. And age is one of them. Like, it's, it's, you can get into a lot of trouble by addressing something that frankly, it isn't appropriate to address, nor should it be addressed at any point in an interview setting.

Thom Jennings (11:00):
Yeah, I, I mean, at it, it, again, it, at so much of that is, and I, I I guess in an interview situation, a lot of stuff comes out. And I know back when I was a restaurant manager and we would interview potential employees, we would get trained on this kind of stuff, and they would say things along the lines of you, oh, you can't ask somebody's age, but if you wanna know somebody's age, there's ways of of figuring that out. You know, like by, based on the year that they graduated from school, you know, things like that. And but, but again, I think those are things that, that in that potential employers do, maybe to, to figure out how old somebody is. I mean, that's the kind of stuff though that can't necessarily get you in trouble, can't it, Kathleen? Because if you're not overtly kind of fishing for the age information, it I mean, how, how would you prove discrimination?

Kathleen Jennings (11:55):
Well, it proving discrimination by an applicant that does not get hired. Those are some of the harder cases for, for those plaintiffs to prove because they maybe were not hired for a number of factors. Maybe age was part of it, but there were probably other more qualified candidates. So it's going to make it hard for them to prove discrimination. But as a practical matter, you don't wanna say anything during an interview that would put a target on your back making comments about someone's age. Something like, oh, oh were you at Woodstock? You know, that would give away someone's age or making comments that again, have nothing to do with the job. Now the problem is in a lot of interviews or there are no problems, there are only challenges. The challenge you face in a lot of interviews is it's, it's a conversation. So sometimes the candidate, him or herself may volunteer information that could disclose the fact that they're in a protected category that you didn't otherwise know about. And if that happens, generally it, it's probably a good idea to just sort of breeze by it. Don't focus on it, don't linger on it, don't make it seem like it's a big deal, but it's going to happen. And so you have to be able to handle it.

Thom Jennings (13:30):
Well, let's, you know, let's throw a couple of of interesting scenarios that, that Thom and I have dealt with over the years and in, in our <laugh>, the one I remember, we, you and I worked for an employer that interviewed someone that showed up at the interview as a man and then came to work and identified as a female. Do you remember that scenario? I do vividly. Yeah. And, and you know, it really, it created quite a, quite a stir in the workplace, but I guess, I mean, that's the type that's gotta be now, especially as things are becoming, you know, more accepting as far as gender fluidity and things like that those situations come up. And I, I guess the reason I mentioned that is because it, on some level, I think she didn't feel comfortable coming to the interview as a female and maybe felt that she had a better chance of getting hired in the position as a male and then showed up to work as a female. And of course, at that point, you know, now, even if you did have an issue with somebody that was transgender, you, you, you obviously aren't, aren't gonna address that because that becomes a clear case of discrimination.

Kathleen Jennings (14:42):
Absolutely. Title VII currently does prohibit discrimination against a person on the basis of transgender status, among other issues.

Thom Jennings Jr. (14:52):
Well, it all comes, comes back to your point earlier though, that it's, it's all relevant to the duties of the job. Correct. So, so if I, in that case in point, and I, I remember that person, I remember the position, you know, this was a, you know, essentially like a web development type role. In, in no way with the fact that she was transgender, would that have any effect on her ability to complete the tasks of her role, right. Whatsoever.

Thom Jennings (15:26):
But it was a, but it was a comfort issue on her end because on some level, she must have felt that there was potential for discrimination because of the transgender status. That's the only reason I bring it up. Cuz you know, you wonder, again, coming back to, you know, if somebody shows up to a job interview and they they're transgender, and then you have that thought in your mind, maybe they think that that could potentially impact their ability to be employed. And you can use another example you mentioned before, a pregnant woman. Okay, a pregnant woman, somebody shows up to a job interview that appears to be seven months pregnant. Let's be honest, what employer's gonna wanna hire them? Because they know that they're gonna have to go on, on maternity leave in two months. So there you go. Could a, could an employee in that situation show up? And I know we talk about the ability to do the job, but somehow hide the fact that they were pregnant in order to get the job for fear of discrimination.

Thom Jennings Jr. (16:26):
But this is where it all comes full circle in a sense, because I, now, pregnancy is an issue I run into a lot. Now, let's say it's a position in a warehouse, and, and Kathleen can step in here and correct me if I'm wrong, but it would be completely, it, it would make complete sense and I, I believe it would be well with the, within the interviewers or employers, right? To ask, are you capable of lifting more than 50 pounds?

Thom Jennings (16:57):

Thom Jennings Jr. (16:59):
And if the answer to that question is no,

Kathleen Jennings (17:04):
That's the type of medical question that cannot be asked unless there is a conditional offer of employment. Ooh.

Thom Jennings (17:14):
Hmm. Well explain what a, what a conditional offer of employment is. Cuz I, I, I think this is cuz I, I think, you know, my impression was is that's something you could ask in interview cuz kind of going back to back what I said before, when I was a restaurant manager, they would tell us, oh, if you want to get somebody's age or, or marital status or any of that kind of stuff, there's ways of figuring it out without overtly asking it.

Kathleen Jennings (17:38):
Well, anytime you're looking, I, I guess if you're just asking if they can lift a certain amount and that had better be an actual amount that is lifted pursuant to that job, you know, you say this job requires frequent lifting of 20 pounds or more, 30 pounds or more you can put on the job application. Is that something you can do with or without accommodation? But if it comes down to actually medically determining if a person can't perform those essential functions with or without reasonable accommodation, and I believe we discussed this in our reasonable accommodation episode those kinds of medical questions or physical capability questions can only come after there is a conditional offer of employment. The offer being conditioned upon verification from a medical doctor or whomever that the person is physically capable of doing the job with or without reasonable accommodation. Hmm. It's complicated.

Thom Jennings (18:49):
So can the, can the employer get into trouble if they don't ask that question? And then it turns out that the employee can't do the job because of a physical restriction?

Kathleen Jennings (19:00):
Well, first you need to identify what are the essential functions of the job. And the question that you can ask any applicant or candidate is, are you able to perform the essential functions of the job with or without reasonable accommodation? So first, is it an essential function? And this is a, again, we could, this is something we can spend a whole podcast episode on. Make sure it's an essential function. Does this person and this job have to do this particular duty? Or is it something that is not done frequently or is it, is it required all the time? You need to identify that. And then can the applicant perform the essential function of the job with or without reasonable accommodation? If you ask the pregnant woman are you able to lift 50 pounds? And she says yes, and then she's gonna show up the next day, perhaps with a doctor's note that has some restrictions. That's where you probably wanna explore that issue with the conditional offer as you would for somebody with a disability. You can't make assumptions ever about what someone can or cannot do just by looking at them. So in the case of, of pregnant women, you can't make assumptions that, oh, we have to treat them as delicate flowers and they can't do anything too strenuous. And, you know, all of that, you can't make those assumptions

Thom Jennings (20:36):
Are are you able to ask if they have kids? I I I I wondered about that as

Kathleen Jennings (20:40):
Well. No, well you shouldn't. Particularly, and, and this goes down to women in this country still carry most of the childbearing responsibilities. Now, some people, like for example, my nephew here is very involved in child caring of his beautiful child, Ms. Michelle. But for the most part, a lot of women are still left with most of the childcare responsibilities. So if you ask a woman in particular, if they have kids that could be taken as a question that you are concerned that maybe they're gonna miss a lot of work because they need to pick up the kids from school or stay home with kids when they're sick or something like that. So that's why you generally don't ask that kind of question in a job interview.

Thom Jennings Jr. (21:38):
Well, it all kind of comes back to this too. Where does that actually fit in a job interview? What, what job are you interviewing for? What position do you have at your company that says if you do or do not have kids, you cannot perform this job? Because the reality is, is where that question becomes malicious. And, and I've experienced this on a personal level, right? And, and, and dad, you and I have have worked it at companies like this, these, these, you know, and, and it's, it's a little more prevalent in, you know, large like sales organizations, right? Where that question comes up because what they're, what they're getting to is, is they wanna know that you don't have a ton of outside responsibility, you know, outside work, right? Are you, to Kathleen's point, are you the person that you know is going to have to take some extra sick time?

Thom Jennings Jr. (22:30):
I take a lot of time off cuz my daughter gets sick, right? That, that, that happens to most parents. Are you, you know, going to miss days to, you know, make it to your, to your children's events and whatever else. So, you know, I, in when employers are asking those questions in interview settings, the sad reality is a lot of the times it, it doesn't have the best intent because I honestly can't think. And, you know, at this point I have recruited hundreds of positions. I can't think of a single position I've ever recruited for where I could say, if you do or do not have kids, that's going to dictate whether or not you're qualified for this role, not a single one,

Thom Jennings (23:10):
Right? But, but you know, that, like you said, there are employers that, that fish for that information because they don't want to have to deal with people that are taking a bunch of time off because they have small children. And, and you know, I think at some levels employees don't even necessarily want to talk about that stuff. It goes back to, you know, the per the employee not wanting to let their employer know that they're transgender, an employee, potential employee, not letting, wanting people to know that you know, they, that they're pregnant. I mean, all that kind of stuff. So you're right, it really comes down to a conversation and, and the job interview is, as much as it's an important part of the hiring process, it's only one part of it, but on both sides it really becomes a chess game. And in the process you have to be very careful coming back to the theme of the podcast, which covering your assets on the employer end.

Thom Jennings (24:00):
When you're playing that game, you have to be very, very careful which moves you make, either because of malicious intent, which, you know, I've had situations where I, I had a job interview where somebody said who carries the health insurance in your family because they didn't want to have to pay for my health insurance. I mean, that's clearly an illegal question, but if I need the job <laugh>, I'm not gonna say anything that they asked a question that they shouldn't ask. But if they ask that question to the wrong person, that becomes very sticky. And I wonder in, in your line of work, especially because in, in executive recruiting, if I'm, if I, if I understand the process, you know, they come to you, you're basically prepping them, you're pre-screening, so you're sending it a potential employee to an organization where, where do you fall in terms of working with, with a candidate that you're sending to an employer? And then also what if you get into a situation where, you know, somebody comes back to you and says, well, in the interview process, they ask me a bunch of questions that they weren't supposed to ask me. I mean, that kind of puts you in a very difficult position all the way around, doesn't it?

Thom Jennings Jr. (25:07):
Yeah. So it's, it's interesting in my role, because I am both client advocate and candidate advocate, I, I used the term last time that I'm, that I'm playing both sides of the fence. But it's true. I, I'm working alongside the candidate, I'm preparing them for the interview, but I might be consulting the client on this at the same time, on, on how to, you know, properly conduct the interview. You know, it's like anything, if, if things come out of an interview process and, and it has happened where, where a candidate comes to me and they said, Hey, you know, they asked me these inappropriate questions. You know, those are things I'm going to have to take up with that client to be very blunt, it's on a professional level, it's, it's a moment I have to consider if that's even a client I want to work with, right? <Laugh>.

Thom Jennings Jr. (25:55):
But it, you know, it, my role is unique in the sense that I'm often a first line interview, but because of my position in the process, I have much more open and candid conversations with those candidates. They'll reveal things to me that they wouldn't be comfortable necessarily revealing in an interview process. You know, people talk, I'm talking to them about their motivations. I'm talking to them about their hopes and dreams. Ultimately, I'm, I'm the individual they're talking to that hopefully can unlock a new career to them. So I will get very frank questions, Hey, you know, my wife is pregnant and I'm going to take a paternity leave in six months. How do you think I should handle this when I step into the interview? And, and you know, at the end of the day my advice always seems to be the same.

Thom Jennings Jr. (26:49):
And I, and I always you know, share this on both sides, is, is transparency always wins, right? Transparency always wins. And not to get way off track, but, you know, if, if people find themselves in an interview setting where the questions are uncomfortable, I promise you, you don't wanna work there. And, and I'm gonna be that blunt about it. If, if those red flags come up in an interview where you feel like, you know, this employer's really prying, you know, they're, they're asking me about medical conditions or, you know, maybe I am, you know, l g bt q and I don't feel like their culture supports that because they're, you know, questioning that, I promise you, you do not want to work there. It, it is not a fit. So don't overthink, you know, what should I do about this? How should I feel?

Thom Jennings Jr. (27:39):
A a at the end of the day, the types of employers that engage in some of this stuff that we're talking about are not employers of choice. They're just not, you know, we're talking about bad business practices. We're talking about the people that open themselves up to E E O C lawsuits. The funny part is, is how often are we surprised, right? It's never like, like the company that you're like, oh my gosh, they're so amazing to have the greatest reputation that hiring manager, everybody loves him. I find it so odd that he asked inappropriate questions. Yeah, no, you know, we know about these folks. So, you know, when I'm, when I'm speaking with candidates, I'm, I'm speaking with the clients, I always say the same thing. You know, transparency always wins. And, you know, interviews are conversational, things are going to get brought up naturally.

Thom Jennings Jr. (28:25):
That's the other piece of it. You know, anybody with kids, you know, this, it's impossible not to talk about them. I can't think of any conversation like happens in any of my day-to-day life, or like, it doesn't come up that I'm a parent. Yeah. Because that's my other full-time job. That's probably my first full-time job, actually, recruiting's probably my second full-time job, right? And it will come up naturally in conversation, but I'm not looking, I'm not, I don't walk into that conversation thinking about how am I gonna address this? How am I gonna let them know that I have children? You know what I'm saying?

Thom Jennings (28:58):
Yeah, no, I agree. And I, and I, I think that, that if the interview itself is I, I mean it really sets the foundation for the, the employment too. If you come out of the interview and then you have a certain set of expectations and then you get into the workplace and those expectations aren't met, then you have a disgruntled employee. And then we go back to, you know, the situations that Kathleen and I talk about on a week to week basis, you know, it, it, once you start that, that ball rolling and you bring in an employee that's disgruntled, then they're gonna start looking for things to happen. And like you said, things come up in interviews that may be gray areas legally, but there's no malice that's intended. But if for some reason something, you know, there's an employee, employee that is, I dunno, you know, we lived next door to a guy, for example, who made a living suing restaurants with the, with slips and falls. And I'm sure that there's serial employees that go out there and look for employers that commit violations and, and hopefully that they have an opportunity to sue them for discrimination, multiple cases. I mean, have you had a situation like that at all? Kathleen?

Kathleen Jennings (30:06):
There are serial sewers normally not because of something like interview questions. It's going to be something more likely that happens once they get to work. They're gonna be, we've we've come up with, almost one of my partners has come up with a profile of, you know, the, the most potential, the person who most likely to become a plaintiff. And so there are certain characteristics of these people that are going to make folks more likely to sue you than others. Such as you know, someone who never takes responsibility for anything. Someone who's just looking for problems. You know, I could go on with that kind of stuff. So one of the things you can do in an interview is try to weed out some of those characteristics. You don't want the person coming to your to, to work for you who can't accept responsibility for mistakes.

Kathleen Jennings (31:09):
We all make mistakes. You don't want that person who's gonna blame everybody else or blame it on, well I didn't make a mistake, you must be discriminating against me. So those are some of the things, some of the subtle issues that you can try to explore in job interviews and, and those would be the kind of issues you could explore when you ask someone about their prior employment history or prior employment situations and how they handled them. That's what you're looking for there. And there's nothing unlawful about looking for those characteristics. Now, you don't wanna ask someone, have you ever sued another employer? Because then they may claim maybe there's retaliation. Technically they're not engaging in any kind of protected activity just by suing prior employers. But you know that if you ask that question, they're thinking, aha, they're gonna, they're gonna be watching me, especially carefully. And so I'm gonna watch them even more carefully.

Thom Jennings (32:22):
Yeah. Well, we're getting ready to wrap up. I know. Is there obviously our guest, this is, this has been a lot of fun, but I I I think there's some, some stuff you'd like to, to still touch on. Is there anything that, an issue you think that we missed in terms of interviewing from your end? Thom Jr.

Thom Jennings Jr. (32:39):
I think the, the interesting thing is, is we look at some of these inter interview questions and, and laws that are out there, like they're, they're setting up traps, but that, that's not necessarily the case. You know, some of these laws exist to, to protect people on both ends. I, I think, you know, the greatest, the greatest example and something that, you know, my practice is based in New York state, and this is something that changed for us. I don't remember the exact date, and I think it was probably two, three years ago. Covid has kind of blended some years together. But, you know, one of the laws that came out said that you cannot ask individuals what their current salary is. And, and it's an an interesting thing because when I first came up in my field, that was very common. I asked that in every interview, and sadly, we did use that as a basis to kind of judge where clients might come in with a job offer.

Thom Jennings Jr. (33:47):
And that is a lot of the rationale behind where that law came into place. Because, you know, the people that that orchestrated that legislation, their thought process was, it's, it's kind of irrelevant what somebody's currently getting paid, right? Maybe they're underpaid, you know, we talk about gender pay gaps and all these different things, right? How do we issue some layer of protection for, you know, job candidates to get what they should, what their value is in this marketplace, and not base it on what they were currently earning? Because at the end of the day, there is a layer of discrimination there. If I'm recruiting for a job that pays a hundred to 150,000, and I ask a candidate, what are you currently making now? And they say, well, I'm making 90. Well, you know, the employer might think, well, everybody's got a budget, right? I'll come in at a hundred.

Thom Jennings Jr. (34:42):
That's a, that's a $10,000 pay increase for them, but that doesn't actually spell out what that candidate's value is or what they're worth to the organization. Would you pay another can if that candidate came to you and they said, I'm currently making 120, would you pay 'em 125? You know, so, so those things come into play to, to protect some of these candidates. So, you know, the point I guess I just wanna make is I think we talk about interview questions and all these things in, in pregnancy and age, like, like laws have just set up all these pitfalls that candidates and employers could fall into. And I truly believe that's not the case. I I really believe that there's, there was the right intentions behind a lot of these laws, and they protect people on both ends, that ultimately the end goal is having employees in the best possible employment situation. Yeah. And

Thom Jennings (35:36):
I, and I think, you know, just to coin an old adage, honesty is always the best policy. And I, I mean, that's been a recurring theme in our podcast. When you say Kathleen, I mean it's the, the people that get themselves into trouble when it comes to employment situations. I would say 90% of the time it's because there's some dishonesty involved somewhere along the line.

Kathleen Jennings (35:56):
Absolutely. And, and also in, in this context, especially with hiring, one of the best reasons not to ask questions that are irrelevant to the performance of the job is because what you don't know can't be used against you. Yeah. So don't ask it if you don't want it to be used against you potentially. Yeah,

Thom Jennings Jr. (36:20):
That sounds like some very classic lawyer advice right there. <Laugh>, can you

Thom Jennings (36:24):
Say that?

Kathleen Jennings (36:25):
<Laugh>, I am a very classic lawyer, <laugh>.

Thom Jennings (36:28):
Absolutely. And of course, you know, one other thing very important to touch on before we wrap this up, but yeah, you know, like you mentioned that that law changed a couple years ago. So it, it's, you know, Kathleen, your firm offers training on laws and laws are changing. I mean, New York State just came out with an employment law related to notification to employees of any email or phone conversations that are being monitored by the employees. So that's, that's a law that's, that's exclusive to New York State. But again, federal laws change, state laws change, I maybe local laws, whatever, but it's important to be up to date on these laws because you don't wanna get yourself into trouble. Because like you said, I'm 55 years old, I've been interviewing guys for, let's just say I've been interviewing people for, you know, 30 years. I'm one of those old school guys, you know, Hey, how much you make you there, Kathleen? You know what, 120, 130. So I mean, there's people that may ask those questions because it's the question that you always asked. So you gotta make sure that people are trained and, and that they know not to ask those types of questions that may now be illegal because of laws that are, again, well-intentioned to protect both the employer and the employee. Alright, so Kathleen, I'll go to you takeaways from this particular episode.

Kathleen Jennings (37:44):
Well, the takeaway, of course, the classic lawyer logic, don't ask a question that you don't want to use, don't want to be used against you. And as Thom pointed out, it is very important to be up to date on federal, state, and local laws in terms of interview questions, discrimination in the workplace and the like. And I would also say thank you very much to my nephew Thom, Jr. For being on our podcast this week. You have really added some interesting flavor to the podcast, and we thank you for being here.

Thom Jennings (38:22):
Yeah, there's a lot more that we can discuss, so hopefully you'll agree to do this again, I dunno, periodically, every few months. But why don't you give us your contact information as far as anybody that might be looking for your services.

Thom Jennings Jr. (38:34):
I think the best way for folks to find me, and, and maybe this is, this is like a classic recruiter thing, right? Look me up on LinkedIn. I, ironically, I have the, the same exact name as Thom Jennings Senior. I'm even gonna try and imitate podcast, voice, rest toast, the podcast co-host, by the way, co-host T H O m Jennings or it's LinkedIn slash in slash t Jennings one. Look me up. I, you know, I post content like this a lot. I'm, you know, I'm passionate about these, these topics. I borrow a lot from the experiences that I've, I've had with my father here if he hasn't talked about it in previous episodes, even though I know he has. We've worked together on several occasions yes, which has been a ton of fun. And then of course, you know, to my takeaways and, and another one of my great influences is, is certainly my Aunt Kathleen here.

Thom Jennings Jr. (39:30):
You know, employment law is one of those areas that recruiters such as myself and, you know, HR leaders and everybody else, we brush up on it, right? We, we know the basics of what we have to, but I can't stress enough. Find yourself some good counsel. If you are not fortunate enough to have an aunt who's an employment law expert go to Google, do something, find somebody because, you know, those are, these can be costly mistakes that you can make in the process that can be avoided with with the right expert in your corner

Thom Jennings (40:06):
Proactivity as well. Kathleen, what's your contact information?

Kathleen Jennings (40:10):
Well, luckily my name is different from both of yours, so I can be contacted on LinkedIn as Kathleen Jennings or through my email, which is kj j

Thom Jennings (40:24):
Alright. And as always, thank you so much for listening to this podcast. This was particularly joyful episode. First one with Thom Jr. Always loved spending time with my kids, and of course my favorite sister and I have two, so when I say that, it's a little more, a little more meaning cuz you only have one brother. But anyhow,

Thom Jennings Jr. (40:41):
He said that to his brother

Kathleen Jennings (40:42):
Podcast, but still my podcast,

Thom Jennings (40:43):

Kathleen Jennings (40:44):
You are still my favorite brother.

Thom Jennings (40:46):
That's right. All right, so again, please subscribe, please share. Again, if you're looking for executive recruitment, of course, reach out to Thom Jr. If you're looking for labor and employment law trainings, cuz again you know, if you're looking for a labor and employment law attorney cuz something bad has happened certainly you can reach out to Kathleen, but we would much rather have you get in touch with her before something happens. And once again, thank you so much for listening to cover your Assets. We'll see you next time.

Podcast Disclaimer

The Cover Your Assets-The Labor and Employment Law Podcast is produced by Thom Jennings of the Caronia Media Group. For more details, you can contact him at

The information provided in this podcast is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this podcast or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings. The opinions expressed at or through this site are the opinions of the individual hosts and guests.

Kathleen J. Jennings
Kathleen J. Jennings
Former Principal

Kathleen J. Jennings is a former principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters.

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