Potential employees have rights during the hiring process, before they are extended an offer of employment. Federal law prohibits hiring discrimination based on race, gender, nationality, pregnancy, age, religion, and disability. Some jurisdictions also extend protection against discrimination based on sexual orientation or gender identity. Employers are required to follow these laws strictly. There are some exceptions, based on a bona fide occupational qualification (BFOQ). For example, employers may consider a disability if it would prevent an employee from adequately performing the tasks necessary to a position. If you have a question about hiring discrimination, you should contact an attorney with experience in employment law.
Employers should largely avoid questions which relate to these protected classes. Questions should be avoided when the answer would indicate the applicant’s:
- Marital status.
- Sexual preference.
- Age (except when inquiring if the applicant is a legal adult).
- Citizenship status.
- Intention to have children.
- Disability status.
- History of drug or alcohol usage.
Employers may discuss these topics if the applicant raises questions related to these areas, to the extent necessary to answer the applicant’s questions.
Employers must complete a series of tasks when hiring a new employee before that employee can begin work. These include:
- Contacting the IRS to obtain a federal employment identification number for each new employee.
- Registering for payment of unemployment compensation taxes with the state employment department.
- Setting up tax withholding for the new employee.
In addition, employers must:
- Report federal unemployment tax to the IRS.
- Set up workers’ compensation insurance.
- Work with the Occupational Safety and Health Administration (OSHA) to prepare an Illness and Prevention Plan.
- Post all notices in the workplace required by OSHA and the federal and state Departments of Labor.
Employers should be extremely careful to avoid false promises or promises they cannot keep when hiring a new employee. Examples of this dilemma include misleading or exaggerated statements about job security, business prospects, or compensation. If these promises are not kept, the employer will be liable for damages based on breach of implied contract.
The need for employers to avoid discrimination and false promises during the hiring process makes this an important legal issue. If you have legal questions about the hiring process, you should consult an employment lawyer. An experienced employment attorney can explain the legal issues involved and protect your legal rights.