Legal Rights During the Hiring Process
Job applicants have legal rights even before they become employees. Under federal law, an employer cannot illegally discriminate in its hiring process based on a job applicant's race, national origin, gender, pregnancy, age, disability, or religion. State and local laws may specify additional protected classes based on factors such as the sexual orientation of a job applicant. Employers must abide by anti-discrimination laws at each stage of the hiring process, from placing a job ad, to interviewing, to the final selection of the candidate to be hired. Download FindLaw's Guide to Hiring [pdf] to keep a handy guide to your rights in the hiring process.
Note: an employer may discriminate on some bases if a "bona fide occupational qualification" (BFOQ) exists -- when the trait in question is a valid and necessary job requirement.
Employer Interview Questions
Generally, employers should avoid questions that relate to classes that are protected by discrimination laws. Following are types of queries that should be avoided by employers during the interview:
- Whether the applicant has children or intends to have children.
- Marital status of applicant.
- Applicant's race.
- Applicant's religion.
- Applicant's sexual preference.
- Applicant's age (other than inquiring whether over age of 18).
- Whether applicant suffers from a disability.
- Applicant's citizenship status.
- Questions concerning drug or alcohol use by the applicant.
An applicant may raise questions related to the above areas during a job interview. If so, the employer may discuss these topics to the extent necessary to answer the applicant's questions.
Whenever an employer seeks to hire a new employee, there are a variety of things the employer must do before the new employee may begin work. These steps include:
- Obtaining a federal employment identification number for each new employee, from the Internal Revenue Service (IRS).
- Registering with their state's employment department for payment of unemployment compensation taxes for each new employee.
- Setting up employee's pay system to withhold taxes to be paid to the IRS.
- Obtaining workers' compensation insurance.
- Preparing an Illness and Prevention Plan for the Occupational Safety and Health Administration (OSHA).
- Posting required notices in the workplace as required by the Department of Labor (DOL).
- Assisting employee with registration for employee benefits.
- Reporting federal unemployment tax to IRS.
During the hiring process, employers should avoid making promises to a prospective or new employee, as any false statements or false promises may result in breach of an "implied contract" under the law. For example, a promise that stock options will be worth a given amount, that the employee has a job for life, or that the employee will receive significant pay increases may result in such an implied contract. So, if these promises are not kept, the employer can be said to have breached the implied contract, and will be responsible to the employee for any damages the employee incurred in relying on the employer's promise.
Legal Help for Job Applicants and New Employees
Prior to and during the hiring process, prospective employees enjoy a number of rights under the law, including anti-discrimination laws and the law of "implied contracts." If you believe that your rights have been violated during the hiring process, whether or not you were eventually hired, you should speak with an experienced employees' rights attorney to discuss your options and protect your legal rights.