Avoiding Legal Land Mines During the Interview Process

Employee turnover is significant at dispensaries, causing dispensary owners and managers to cram interviews into already-busy schedules. However, interviews should not be an afterthought.

The interview process is completely under your control—you set the questions, establish the expectations and determine whether the candidate will be a good fit. It is an opportunity to showcase your company’s values, staff and culture. A good interview process should make candidates say, “This would be a great place to work.” But a poorly thought-out interview method, inadequate planning or inappropriate or illegal questions will not only create a negative impression for potential employees, but may also get you sued.

Tailoring your interview process and the questions you ask can help ensure your next meeting with a prospective employee isn’t in a courtroom.

Comply with Federal and State Laws

Certain questions and behaviors are regulated by state and federal laws, which are spelled out in basic HR handbooks and on a variety of websites. While every state has different laws regarding job interviews—such as the outlawing of marital status questions and/or forbidding discrimination of a prospective employee for an answer to a personal question—the dispensary owner should know there are some general “don’ts” that apply to every employer regarding questions about a candidate’s race, gender, age, religion, sexual orientation, disability or other sensitive topics.

8 Interview No-No’s:

Here are eight examples of questions that might appear well-intentioned, but are legally risky and could result in a lawsuit.

1. “Our dispensary is growing, and we need people who can work long hours. Do you have any religious issues with working on a Saturday or Sunday?”

Never ask candidates about their religious preferences, which religion they practice or how their religion might affect their work. Instead, provide the hours the candidate will be expected to work at your dispensary and confirm he or she can work those hours. If the candidate is unable to work the hours expected for the job, don’t assume or ask the reason. Remember that religious discrimination is illegal across the U.S., and while the government doesn’t specifically forbid questions about religion, there may be state laws that make them illegal.

2. “Your name is exotic; where are you originally from? Does that mean English is your second language?”

It is illegal to ask if the candidate is a U.S. citizen, where he or she was born or if he or she speaks a language that is unrelated to the job. Instead, you can ask if a person is authorized to work in the U.S. You may not ask if the candidate’s first language is English because this is essentially asking someone about his or her ethnic background or nationality, which is not permitted under the Civil Rights Act of 1964.

3. “Our dispensary is family friendly. Are you married? Do you think you and your partner will be starting a family soon?”

It is illegal in several states to ask about a candidate’s marital status, gender, whether she is pregnant, planning to have children or anything regarding sexual orientation. Even if the candidate offers this type of information, do not record it, and return the conversation to the job requirements. New York and California explicitly ban questions about marital status. The Equal Employment Opportunity Commission (EEOC)—whose role it is to enforce “federal laws that make it illegal to discriminate against a job applicant or an employee,” according to the commission’s website—advises against asking those types of questions even in states where it is not outlawed because marital status is often used to discriminate against female employees, which violates the Civil Rights Act of 1964, according to Business Insider.

4. “The budtender job requires the ability to lift merchandise that can be heavier than 20 pounds. Have you had prior medical problems that would prevent you from being able to do so?”

You are not allowed to probe a candidate’s health status because it can be seen as attempting to elicit information about a disability. You can ask if he or she has the physical ability to lift a certain minimum weight or reach a shelf that is 5 feet high, if that is an important part of the job. You can ask if there are accommodations the candidate would need to perform the job. The dispensary owner or manager should confirm the state requirements for accommodating employees with disabilities.

5. “You look to be in great shape! Do you go to the gym regularly? Did you take any sick days or medical leave last year?”

You can’t ask how tall candidates are, how much they weigh or what kind of shape they are in, as these can be considered discriminatory factors in a job selection. You are also not allowed to ask about a person’s sick-leave use on a prior job.

Additionally, questions about what type of organizations or clubs a person belongs to are also off-limits, because they could be seen as asking about a person’s sexual preference, disability or other information that is not related to the job.

6. “We are looking for a young, energetic team player for our new dispensary.”

Do not use language that relates to or suggests a preference for a particular gender, race or age. According to job site Monster’s article “Think Before You Hire: Maintain a Legal Hiring Process,” both “young” and “energetic” suggest an age preference and can open you up to a discrimination lawsuit. Phrasing the description to say, “Looking for a hard worker who can thrive in a fast-paced, dynamic dispensary environment” is a suitable alternative.

7. “Our dispensary offers paid time off for child care emergencies. Do you have children? What kind of child care arrangements have you made?”

It is illegal to ask questions about child care arrangements. You only need to know if the applicant can work the hours as indicated in the job posting.

8. “Did you graduate high school around here? I went to XYZ School, just a few blocks from our dispensary. What year did you graduate?”

Asking when a person graduated from high school (or college) is seen as a way to ask someone how old he or she is. Many states ban interview questions that ask about an applicant’s age. In your interview process, you can ask how many years of relevant work experience candidates have and in which years they attained that experience.

BEST INTERVIEW PRACTICES

Follow these pointers to help increase the odds of a smooth interview process:

• Don’t rush to bring in every candidate. Begin the interview process with phone interviews to identify finalists you want to interview in person. This will save time in the long run and will impede less on day-to-day operations.
• Each dispensary job is unique and therefore requires different skill sets and attributes. Be as specific as possible in the interview and include questions that will help you get a sense of what specific skill set the candidate will bring as well as convey the attributes you are seeking. For example, if the job description says: “Must be able to recommend CBD and THC products for clients with gastrointestinal symptoms”—generate an interview question that asks whether the candidate has that specific sales experience and what the applicant’s customer service style is.
• Be wary of candidates offering phrases like “passionate about marijuana” or “caring attitude toward people,” because they are difficult to define and quantify, and are subjective. If candidates offer a response along these lines, follow it up with a question such as, “How does your passion for marijuana make you a good candidate for this job?” or “Can you provide an examples of when you had to deal with someone who was confrontational?”
• Interview questions should be open-ended, meaning that they require more than a “yes” or “no” answer. Develop questions that encourage candidates to think on their feet and draw from their experiences. These types of questions are called “behavioral interview questions.” Behavioral interview questions reveal if the candidate is a potential fit for your dispensary.
• If other dispensary team members will be part of the interview process, brief them beforehand. Remember that everyone must conduct interviews according to employment law. Have the written job description available to the team, including skills and attributes, as well as written interview questions. During the interview, they should read the interview questions directly from the “script” so they don’t accidentally ask or talk about something off limits. Remind them that notes taken during the interview must directly relate to the questions being asked. Notes should never indicate an applicant’s race, age, national origin, gender, disability or other such identifier.
• A salary range should be discussed rather than a specific amount, since salary will usually be based on the candidate’s experience and qualifications. Specific salary and employee benefits should be stated in the written job offer, not in the interview.
• Don’t make any promises or guarantees regarding the job or future employment, comment on how “well” the applicant did on the interview or how he or she compares with other people you’ve interviewed.

There is a lot to remember and some work ahead of you and your team to ensure you have a legal and effective interview process. But it will be worth the effort! Remember, this is your opportunity to showcase your company and your team, and to let potential employees know that your business is a great place to work.

Note: The information in this column is provided for informational purposes only and should not be construed as legal advice. Always consult a legal professional regarding legal matters.