A belated guide to hiring in America

By Andy McLoughlin on June 18th, 2012

This column is late. Extraordinarily late, truth be told. Weeks overdue. The good people at The Kernel have actually stopped hounding me about it as I think they’ve given up all hope that it would appear. Well, here it is at last. And, gosh, the first half is actually reasonably entertaining!

There’s been a lot of stuff going on since I last put fingers to keys. I moved to San Francisco’s hip Mission district (and thus own 300 per cent more v-neck t-shirts than before), bought an obscenely large television (which is wider than my girlfriend is tall, and certainly weighs a lot more than she does) and my company, Huddle, closed a $24 million venture funding round. The sleuths among you will have guessed that the last two points aren’t necessarily unconnected.

As anyone who has raised venture finance will attest, the final weeks of the deal – the “due diligence” – are probably the most nerve-wracking of the entire process. Preceding this point, terms have been presented, numbers are discussed, collective fists are banged on metaphorical tables and, finally, a term sheet is signed.

At this point the investors disappear into a dark room with your disclosure bundle and you, the founders, slowly begin to stew with worry because you haven’t heard anything in a couple of days. Of course, stuff is probably fine (the no news is good news adage generally holds  true) but that’s not going to stop you thinking the universe is caving in, your startup is doomed and, in the future, random people will stop you on the street to point and laugh.

By virtue of the fact that I’ve already mentioned the funding, you know that this particular story had a happy ending. But what nobody tells you (until you’ve closed your fist venture round, at least) is that the wadge of cash that’s just hit your bank isn’t the answer to your prayers. Indeed, it’s actually the beginning of your problems.

Now, don’t get me wrong, these aren’t bad problems (like a terminal illness, having completely forgotten to study for a university exam or being forced to use SharePoint) but – as my co-founder Alastair’s father would call them – these are high class problems. An example of a high class problem might be having to choose between two supermodels to take to a society event. Or having to drink the 2000 Château Lafite Rothschild because you’ve run out of “the good stuff”.

In this case, the post-funding, high-class problem you will face is scaling your business. Quickly. In Huddle’s case this means roughly doubling in size to over two hundred people, as fast as we possibly can, while not sacrificing quality and ensuring everyone we hire fits in culturally, understands and appreciates our values and is passionate about what we do. We call these people Huddlers (every company should have verbage for their team members; I like to think that Glenn Shoosmith’s staff refer to each other the Bookingbuggerers), with Huddlers being our term which describes a rare and indefinable quality we’ve seen in great people who just belong.

The process of discovering Huddlers among the throbbing masses has always been hard. We often see great people who will be a pain to work with, and average people who we think would be terrific fun to have in the office. Sadly, neither will make the cut, as we are obsessively hunting for the people in the middle of this bizarre venn diagram. The interview process we run (including Huddle’s patented 4 point multi-interviewer approval system) has worked well to date because – alongside the rigour – we’ve always felt that we could basically ask anything. And we often did.

If I wanted to know who you thought would win in a three-way fight between Gates, Jobs and a Page-Brin tag-team, I’d ask. If I wanted to know what you thought of the homeless problem in San Francisco (and what you personally would do to fix it), I’d ask. If I wanted you to tell me the best dirty joke you knew; to whistle your favourite song; to justify your choice of current car: I’d ask. And, by golly, you’d better have an entertaining answer.

Well. One of the things I’ve learnt since we kicked off our expansion in earnest is that you really can’t ask these particular things in America. Indeed, there’s also a huge amount of seemingly innocuous stuff you aren’t supposed to mention in an interview. I’m no human resources expert and I guess that a lot of these would also be true in the UK but, frankly, when it comes to litigiousness, the US has the UK beaten hands down. As such, it’s rather important for anyone growing a US team to be aware of what you can (and more importantly, can’t) discuss in an interview.

Before I continue, let me underline again that I am not an HR professional (despite what you may have thought if you’ve ever had the dubious pleasure of meeting me) and what I’ve written below is my personal view. If you are hiring in California, or any of the other sixty five American states, I would recommend working with qualified HR people to ensure you’re legally covered.

OK? OK. To business! Firstly, there’s the basic stuff everyone knows, such not asking an applicant’s age. You also can’t drill into when they graduated from college or school (this is often left on a CV but it’s generally easiest to pretend you haven’t seen it) as this can give an approximation of age which is illegal for you to know. However, wonderfully, it is entirely legally acceptable to earnestly ask if a person is over eighteen. This is generally less useful for technology start-ups, but probably relevant if you’re interviewing pimply young adults to work in a theme park, serve in a fast food joint or join your country’s armed forces.

It makes a lot of sense that you can’t ask about someone’s ethnicity or race in an interview. However, you also can’t ask which clubs, societies or organisations they belong to. This isn’t to protect you from the initially-normal-appearing Call of Duty guild member (who turns out to be a weapons nut who brings automatic rifles to the office), but rather to protect you from future legal liability if one of their discussed memberships is indicative of race. Pro-tip: being sued for perceived racial bias is not cool, so stick to asking which professional or trade groups they belong related to their ability to perform this job. Wordy, but legally sound.

Like race, religion is an absolute no-go for reasons I’m sure I don’t need to explain. I like to think that most of us start-up folk are cool, liberal types, who would never discriminate based on religion, but you have to remember that there are still a lot of people out there who can and will. If you are worried that someone’s religion might stop them being able to work on certain days (for example, you often need staff to work on a Saturday or Sunday) then you can legally ask if they are able to work on weekends. Don’t be tempted to dive in any further than that, though – there be lawsuit-flavoured dragons.

While every person who is either married and/or has kids is medically incapable of not mentioning the fact at least twice in a one-hour chat, you may not ask about martial status, pregnancy, future childcare plans or childcare arrangements. You can ask if there is there anything that would prevent them from coming to work regularly. And if you are fascinated by their spouse or offspring, don’t worry. It’s likely that if you hire this person you’ll know the minutiae of their family’s habits and routines within the first hour of their employment.

Unsurprisingly, there are also strict rules around discussing disability (just stay clear of this topic and focus entirely on whether they are able to perform the essential function of the advertised job; be very specific what these essential functions are) and criminal record (questions about arrest records are unacceptable because they have been shown to be racially biased, apparently). On this, if you can prove that the number, nature and time of any convictions would cause the applicant to be unsuitable for the position then you are probably OK to disqualify them.

For example, you would be justified in not hiring someone convicted of theft to work in people’s houses and service appliances. In fact, doing so may put you at liability for negligent hiring. However, this is only because there is a reasonable, direct correlation between the conviction and the risk to your customers.

So what can you discuss? Questions about an applicant’s educational experiences are acceptable and you can ask which schools they attended (remember not ask when they graduated, though!). Focussing on an applicant’s knowledge and skills are acceptable (indeed, I’d go as far as to say this is essential!) and questions regarding previous jobs (or lack thereof) are absolutely fine. I’d also encourage you to go wild with questions regarding an applicant’s goals, reasons for applying for the job, strengths and weaknesses. The usual stuff.

So you’ve got through the interviews without upsetting anyone and found the perfect candidate you want to hire? Great work! In order to make a job offer you need to confirm the person’s ability to work legally in the US. Guess what: you may not enquire about or remark on a person’s national origin and, technically, you can’t even ask if the person is a US citizen. The correct question at this stage is: “are you lawfully employable in the United States?” Then you ask for I-9 verification.

If all of the above hasn’t put you off, and you still want to build that big team in the US, I’d recommend you do the smart thing and hire a local recruiter. It’ll make your life about one hundred times easier and reduce your chances of a lawsuit by about 99.9 per cent. I’ll confirm this stat in a year’s time, assuming I’m neither in jail nor deported for accidentally asking a candidate about their tattoos or the best thing they’ve done while drunk. Good luck.