The Hiring Process

Applicants for employment positions have rights even before they become employees. Under federal law, an employer cannot illegally discriminate in its hiring process based on their race, national origin, gender, pregnancy, age, disability, or religion. State and local laws may specify additional protected classes based on issues such as sexual orientation. Employers must abide by anti-discrimination laws at each stage of their hiring process, from placing the ad to interviewing to the final selection of the candidate to hire. There are few exceptions to these rules, but an employer may discriminate on some bases if a bona fide occupational qualification (BFOQ) exists. A valid BFOQ occurs when the trait subject to discrimination claims is a valid and necessary job requirement. If you are concerned about discrimination in hiring, contact an employment lawyer to discuss your situation.

Employer Interview Questions

Generally, employers should avoid questions that relate to the classes protected by the discrimination laws. The following examples are the types of queries that should be avoided by employers - and that raise applicant eyebrows.

• 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 these areas during a job interview. If so, the employer may discuss these topics with the extent necessary to answer the applicant's questions.

Hiring Process

Whenever an employer seeks to hire a new employee, there are a variety of things that employer must do before that new employee may begin work. These steps include:

1. Obtaining a federal employment identification number for each new employee from the Internal Revenue Service (IRS).
2. Registering with their state's employment department for payment of unemployment compensation taxes for each new employee.
3. Setting up employee's pay system to withhold taxes to be paid to the IRS.
4. Obtaining workers' compensation insurance.
5. Preparing an Illness and Prevention Plan for the Occupational Safety and Health Administration (OSHA).
6. Posting required labor notices in the workplace as required by the Department of Labor (DOL).
7. Assisting employee with registration for employee benefits.
8. Reporting federal unemployment tax to IRS.

When an employer hires a new employee, they should be careful to avoid making promises to the employee that they cannot keep. Such false statements or false promises on behalf of the employer may result in breach of an implied contract. An employer should be careful not to exaggerate about the security of the job or the prospects of the business. A promise that stock options will be worth a given amount, that the employee has a job for life, or that employee will receive significant pay increases may result in an implied contract. If these promises are not then kept, the employer may be deemed 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.

Conclusion

An employer must be careful not to discriminate against an applicant on illegal grounds and must use caution in making promises to potential employees. If have any questions about these issues, a lawyer can help.

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