Illegal Hiring Policies

Employment law encompasses a wide range of legal issues concerning employees, employers, and safety conditions in the workplace. Some employment laws may apply to employment discrimination cases, while others can provide guidance when drafting company policies or employee handbooks.

All employees are protected by employment law.

What Are Illegal Hiring Policies?

Employers are required to implement fair and nondiscriminatory hiring policies under state and federal employment laws. Employers are prohibited from discriminating against potential employees based on age, sex, race, political affiliation, religion, or other characteristics.

Policies that may constitute illegal hiring include:

• Are discriminatory in nature (for instance, only hiring men or only hiring persons below a certain age)
• Are unnecessarily invasive in nature
• Involve a violation of a person’s privacy rights
• Discuss illegal actions or conduct as part of the employment
• Incorrect administration of pre-hiring drug testing
• Involve unreasonably restrictive non-compete clauses

Various other practices can be considered illegal, including hiring someone in exchange for sexual or romantic favors (which may be considered sexual harassment).

What Are Illegal Hiring Laws?

Employers may not use illegal hiring practices during employment selection and hiring phases, as governed by employment laws. The laws regarding a prospective employee’s legal rights during the hiring process are primarily governed by the Equal Employment Opportunity Commission (“EEOC“).

Under the EEOC, it is illegal to discriminate against an applicant for employment because of their race, color, religion, sex, national origin, age, or disability. Applicants for employment are also protected from discrimination by state illegal hiring laws.

What Are Some Examples of Illegal Hiring Practices?

Illegal hiring laws cover more than just protection for candidates for employment. Employers are also prohibited from doing the following:

• Discrimination via Employment Policies and Practices: The EEOC expands its protections to applicants by prohibiting employers from using employment policies and practices that have a disproportionately negative effect on applicants based on protected characteristics (i.e., race, religion, sex, disability, etc.). A company’s employment policies and practices must relate to the job and be necessary for its operation;
• Discriminate Job Advertisements: Job advertisements that discourage an applicant based on protected characteristics or advertisements that show a preference may also violate the law. A job advertisement targeting recent high school graduates or women may discourage men or older persons qualified for the position from applying;
• Hiring Illegal Workers: Under current federal law, it is illegal for an employer to hire, recruit, or refer illegal immigrants for work. Contractors who hire illegal immigrants are also subject to this law. An I-9 form must be completed within three days of hiring. The failure to complete an I-9 form and the hiring of an illegal worker are both criminal and civil offenses; and
• Pre-employment Inquiries: Generally, any information obtained or requested from an applicant through the hiring process should be limited to questions essential for determining if a person is qualified for a job. Questions regarding a person’s age, race, sex, national origin, gender identity, etc., are irrelevant in determining a person’s qualifications for employment. Employers should not ask the following questions:
  • Whether the applicant is married or has children;
  • The applicant’s age, race, religion, sexual preference, and disability are protected characteristics.

Illegal hiring laws encompass several federal laws and protections. The hiring process is subject to additional state laws. Therefore, it is important to understand federal and state employment laws and the protections of the hiring process. An employer may lose time and resources if even the appearance of illegal hiring practices results in an investigation by federal or local employee rights agencies.

Any violation of any of the above laws can result in civil fines, civil lawsuits, suspension of business licenses, and criminal penalties, including fines and imprisonment.

Are There Any Legal Consequences For Illegal Hiring Policies?

Hiring policies have the danger of applying to all applicants equally. Thus, many applicants or candidates may suffer if a hiring policy is illegal.

Legal consequences can include:

• Negative effects on the business, such as a civil fine or suspension of business license
• Civil lawsuits filed by affected applicants
• Class action lawsuits filed by several affected persons
• In case of intentional violations or white-collar crime, criminal consequences may result
• An injunction requiring the business to change its policies so that they conform to employment and hiring laws

Illegal hiring policies often involve hiring illegal immigrants. These policies may result in losing a business operating license in some states. Another example is where the employer uses illegal interview questions when screening candidates (such as asking irrelevant questions about the person’s national origin).

Legal remedies for affected applicants may include a damages award or reconsidering their employment applications.

How Can Illegal Hiring Practices Be Avoided?

As can be seen, job applicants have numerous legal rights. Understanding the employment laws and protections afforded to job applicants in your area is the best way for employers to avoid illegal hiring practices.

To do this, you must understand federal protections and the local laws that apply to your business. To begin the hiring process for prospective employees, you should formulate a hiring plan.

Before hiring an individual, employers should take the following steps:

• Research the local and federal protections afforded to job applicants;
• Ensure the business is properly registered, has a federal employment identification number (“EIN“) from the Internal Revenue Service (“IRS”), and is registered with the state’s employment department for payment of taxes for each new employee;
• Ensure the proper amount of an employee’s pay is being withheld for taxes to be paid to the IRS;
• Obtain workers’ compensation insurance to lessen the amount of personal liability of the business towards employees; and
• Ensure all proper notices are posted in the workplace as required by the United States Department of Labor (“DOL”).

In formulating a legal plan for the hiring process, consulting other business professionals in your industry and local legal professionals is helpful. Consultation with other local businesses can help you formulate a hiring plan for your business and avoid illegal hiring practices.

Do I Need a Lawyer for Help With Illegal Hiring Policies?

As can be seen, illegal hiring practices can be very costly for a business, especially a small business. If you are an employer, it may be in your best interests to consult with a well-qualified and knowledgeable discrimination attorney in your area to assist you in formulating a legal plan for your business’s hiring process. Your business can ensure compliance with both federal and state hiring laws by hiring an experienced employment law attorney.

Suppose you believe you have been discriminated against in the hiring process or while employed. In that case, you should consult a qualified discrimination lawyer in your area to assist you with your discrimination claim. If necessary, an experienced attorney can assist you in filing a claim against the employer and represent you in court.

Hiring policies can often raise complex legal issues. Lawyers who specialize in discrimination may be able to assist them. Hiring a lawyer can obtain legal advice and guidance regarding your employment law issues. Furthermore, your lawyer can represent you at any formal court hearings or meetings.

Lastly, if there are any changes to the employment laws in your area, your attorney can keep you up to date regarding your legal rights and options.