Illegal hiring laws are employment laws that govern the acceptable practices that employers may use during the selecting and hiring phases of employment. 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 that person’s race, color, religion, sex, national origin, age, or disability. There are also state illegal hiring laws, which protect an applicant for employment from discrimination.
What Are Some Examples of Illegal Hiring Practices?
Besides protections for prospective applicants for employment, there are additional legal topics that fall under the umbrella of illegal hiring laws. For instance, it is also illegal for an employer to do any of 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.). Employment policies and practices must be job-related and necessary to the operation of the business;
- Discriminate Job Advertisements: Job advertisements that discourage an applicant based on protected characteristics, or advertisements that show a preference may also violate the law. For example, advertising to recent high school graduates or ads seeking females, may discourage men or older persons qualified for the position from applying, and, thus violate the law;
- Hiring Illegal Workers: Under current federal law it is illegal for an employer to hire, recruit, or refer illegal immigrants for work. This law also extends to hiring contractors who use illegal immigrants. Within three days from the date of hire, employers are required to complete an I-9 form. Failing to complete an I-9 form and hiring an illegal worker carries both criminal and civil penalties; 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 typically not ask the following questions:
- Whether or not the applicant is married or has children; or
- Questions concerning protected characteristics such as an applicant’s age, race, religion, sexual preference, disability, etc..
As can be seen, there are numerous federal laws and protections that fall under the umbrella of illegal hiring laws. Once again, there are additional state laws concerning the hiring process. Thus, it is important to be aware of not only federal laws and protections concerning the hiring process, but also local state employment laws. Even the appearance of illegal hiring practices can subject an employer to an investigation by federal or local employee rights agencies, which may result in the loss of time and resources for the company.
Legal consequences for violating any of the aforementioned laws can include civil fines for each violation, civil lawsuits, suspension of business licenses, and criminal penalties, such as criminal fines and imprisonment.
How Can Illegal Hiring Practices Be Avoided?
As can be seen, there are numerous different legal rights that are afforded to job applicants. As an employer, the best way to avoid illegal hiring practices is to first obtain a basic understanding of the employment laws and protections afforded to job applicants in your area.
This means understanding not only federal protections, but also the local state or city laws that govern your particular business. Thus, before beginning the hiring process for prospective employees you should formulate a plan for the hiring process.
Steps that an employer should take before hiring an individual include, but are not limited to:
- 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 of the proper notices are posted in the workplace as required by the United States Department of Labor (“DOL”).
It is helpful to consult with other business professionals in your industry, as well as local legal professionals in formulating a legal plan for the hiring process. For example, consulting with other local businesses can help you formulate a hiring plan for your business and avoid illegal hiring practices.
Do I Need an Attorney for Help With Illegal Hiring Laws?
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 employment law attorney in your area to assist you in formulating a legal plan for your business’ hiring process. An experienced employment law attorney can ensure that your business’ hiring process complies with both federal and state laws concerning the hiring process.
If you are an applicant for employment or an employee and believe that you were discriminated against, in the hiring process or while employed, you should immediately consult with a licensed employment law attorney in your area to assist you with your discrimination claim. An experienced attorney can assist you in filing a claim against the employer, as well as represent you in court as necessary.