I work as an independent contractor and was recently reminded that many of the questions I’m asked are illegal to ask for standard employees and I’m wondering if it’s legal for a prospective employer to ask me these questions if I’m working as an independent contractor. What exactly are the questions a prospective company is allowed to ask an independent contractor? Are there any limits or are they only supposed to ask those same questions as if you were applying for employment?
First off, in terms of whether independent contracts can be asked different questions, all I can find are that it’s legal to ask specific questions if they directly relate to the ability of the applicant to do the job. The Department of the Interior has a useful table of legal / illegal questions.
After digging around quite a bit further, the best answer I’ve found was on the terrific Business.Gov site. Here’s what they say about this very important subject:
The Successful Interview – What Not to Do
The following list is comprised of subject matter that is widely regarded as off-limits for discussion in an interview by employment experts. Most of these subjects relate directly to federal and state employment laws. Legislation covering equal employment opportunity is extensive and complex. Check not only federal laws, but also your own state’s laws and guidelines. Remember, state laws vary! Consult an attorney for legal advice before you begin the search process for a new employee.
In an interview, or on an employment application, do not ask questions:
- Concerning the age of the candidate. Be careful using the words over qualified with older candidates.
- About their arrest record (this is different from convictions – in most states, it is permissible to ask if the candidate has ever been convicted of a crime).
- About race or ethnicity.
- Concerning the candidate’s citizenship of the U.S. prior to hiring (It is permissible to ask “Will you be able to provide proof of eligibility to work in the U.S. if hired?”)
- Concerning the candidate’s ancestry, birthplace, or native language (it is permissible to ask about their ability to speak English or a foreign language if required for the job).
- About religion or religious customs or holidays.
- Concerning the candidate’s height and weight if it does not affect their ability to perform the job.
- Concerning the names and addresses of relatives (only those relatives employed by the organization are permitted).
- About whether or not the candidate owns or rents his/her home and who lives with them. (Asking for their address for future contact is acceptable.)
- Concerning the candidate’s credit history or financial situation. In some cases, credit history may be considered job-related, but proceed with extreme caution.
- Concerning education or training that is not required to perform the job.
- Concerning their sex or gender. Avoid any language or behavior that may be found inappropriate by the candidate. It’s his/her standard of conduct that must be met.
- Concerning pregnancy or medical history. Attendance records at a previous employer may be discussed in most situations as long as you don’t refer to illness or disability.
- Concerning the candidate’s family or marital status or childcare arrangements (it is permissible to if the candidate will be able to work the required hours for the job).
- Concerning the candidate’s membership in a non-professional organization or club that is not related to the job.
- Concerning physical or mental disabilities (asking whether the candidate can perform the essential job duties is permitted). The ADA allows you to ask the applicant to describe or demonstrate how they would perform an essential function(s) when certain specific conditions are met . Check the law or consult with an attorney before moving forward.
Remember – when in doubt, ask yourself if the question is job-related; if not, don’t ask!
For more information
The U.S. Equal Employment Opportunity Commission homepage: http://www.eeoc.gov/.
Good article, I like the links to the gov sites. Very useful before going to the interview.
In terms of asking for photos, as far as I believe, they can only ask that if your physical appearance is an important element of the job. For example, a cocktail waitress. Otherwise, yeah, that sounds like they might be in a gray area.
can a company ask for a photograph before calling me for an interview and the photograph to be txtd to a mobile phone.
Can a company ask for a candidate’s photo prior to interviewing?
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The beauty of an Independant Contractor status is that you are an business basically for yourself. When a company “hires” an independant contractor thay have in effect placed an order for your services. Not much different than hiring a plumber or a roofer or someone to come fix your sidewalk. The company can ask just about whatever they want, they are not hiring you in the classic employee/employer sense. The benefits of the independant contractor status work both ways.
For a better feel of the rights and responsibilities of an independant contractor, look to the IRS rules on the subject (I don’t have a URL right at my fingertips though) there are some pretty basic guidelines that are very easy to understand.