What questions can be asked by a security company?

We are starting a new security company (protective services at high levels) and need to know if it is legal on an application to ask prospective employees if:

1. List all arrests, formal charges, trials, convictions of any criminal offenses.

   RR: It is illegal to ask about arrests or charges. You are allowed to ask about convictions. Some states have restrictions on using information about convictions. For example, California does not allow employers to consider employee's convictions for marijuana possession.

2. Have you ever been treated by a psychiatrist?

   RR: This is illegal under the Americans with Disabilities Act, which applies if you have 15 or more employees. Some state's laws also prohibit discrimination on the basis of disability if you have fewer employees (e.g. California applies to 5 or more employees).

Rita Risser's Response:

You are allowed to send potential employees to a doctor (including a psychiatrist) for a pre-employment exam if:

1. a job offer is made first, contingent on passing the exam,
2. all potential employees for similar positions are required to undergo such exams and,
3. the doctor's report to you simply states that the individual is able to perform the essential functions of the job, is unable to perform those functions, or is able to perform the functions with reasonable accommodation.

The essential functions should be listed in a written job description and should include such things as ability to work under stress or other requirements needed for those particular jobs. If the doctor's report says the individual needs reasonable accommodation, you cannot refuse to hire them on that basis unless the accommodation would cause an undue hardship on your company. If you get to that point, it is best to get a lawyer involved before making the decision that it is an undue hardship.

Disclaimer: This information is provided with the understanding that the author and publisher are not engaged in rendering legal or other professional services. The publishers disclaim any liability, loss or risk incurred as a consequence, directly or indirectly, of the use and application of any of the contents of this information. This information is not a substitute for the advice of a competent legal or other professional person.