Hiring

Common Questions About the Hiring Process

What are the key employment laws related to hiring?

The proliferation of worker protection laws over the past forty years has severely limited employers' discretion in their dealings with individual workers. To see how far we've come in the past half century, all we need to do is think back to the 1930s, when company foremen chose hungry and unemployed workers off lines outside the facility gate for a day's work. One mistake and the worker was fired—only to be replaced by the next poor soul waiting in line.

Flash ahead to the 1960s: Thirty-three Black sanitation workers were fired for seeking union representation, bringing Martin Luther King, Jr., to Memphis to meet his untimely death. Even today, labor laws are still changing to meet the needs of particular employee groups: doctors and engineers contemplate union representation to improve working conditions, wages, and benefits. The Americans with Disabilities Act continues to be refined and clarified, allowing greater benefits to American workers through stricter interpretation of its standards.

The blistering pace of technology unleashes new tools like cell phones and the Internet, which were supposed to make life easier for all of us. Instead, they just accelerated our expectations for work turnaround. Techno-stress led to workers comp stress claims and unparalleled incidents of workplace violence. The breakdown of the modern nuclear family led to the passage of the Family and Medical Leave Act (FMLA), a labor standard and leave law that mandated that employers allow employees time to take care of family medical emergencies. And on top of all this, legislators increased penalties against employers by including punitive damages that could render an organization bankrupt for failing to meet any of a multitude of laws enacted to protect individuals.

Although we employers may see ourselves as the victims of the law of unintended consequences and a judiciary run amok with overly aggressive plaintiff attorneys looking for unlawful motives in even our most benevolent actions, we could all agree that we wouldn't want to go back. The twentieth century was one of stunning progress for American workers. The pace of change in our laws continues faster than ever. The key, however, remains in our finding a balance between companies' prerogatives and employees' rights.

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For the most part, the laws that govern our companies are fair and practical. Of course, all it takes to file a lawsuit in many venues is a typewriter and a $100 application fee. Still, we need to understand the umbrella of laws that govern the workplace, not only to avoid or minimize lawsuits but also to be perceived as fair employers who look to increase profits and productivity while respecting our workers' needs for privacy, respect, and satisfaction.

The easiest way to classify the laws that follow is according to company size. The larger your company, the more the laws that govern it. You'll find more information about these particular laws throughout the text. For now, this section will serve as a primer and overview. Remember that the legislature's intent in passing these laws was to protect American workers from company abuses; however, plaintiff attorneys will use these same statutes against your company as proof that you violated the law. As a result, special consideration should be given to any employee who falls within the protections of the following laws:

Company Size

Laws and Other Employment Provisions That Govern Your Company

General Guidelines

One or more

employees

Federal and state wage and hour laws

When state and federal laws conflict, generally the law that is more generous to the employee must be followed. Federal wage and hour lawis regulated by the Fair Labor

Standards Act (FLSA) and is enforced by the U.S. Department of Labor's Wage and Hour Division.

Equal Pay Act of 1963

The Equal Pay Act requires all employers covered by the FLSA to provide equal pay for equal work, regardless of sex.

Sexual harassment prohibitions

Employers must take all reasonable steps to prevent harassment from occurring. Harassment on the basis of sex generally includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical condition.

Unemployment and disability insurance

With few exceptions, federal and state unemployment insurance laws cover all employers.

Immigration Reform and Control Act

(IRCA)—Employment Verification

Form I-9 must be completed for every employee hired after November 6, 1986, in order to verify eligibility to work in the United States

Child labor laws

Employers generally must acquire a work permit before employing a minor.

Time-off provisions

All states require employers to provide time off for certain activities like jury duty, voting, emergency duty as a volunteer firefighter, and military service.

Posting and notice requirements

All employers are required to display certain posters relating to

harassment/discrimination, safety and health, unemployment and disability insurance, and state and federal minimum wage requirements. Other notices may include information sheets regarding sexual harassment and workers' compensation claims.

Occupational Safety and Health Administration (OSHA)

All employers must comply with both federal and state health and safety laws.

Uniformed Services Employment and Re-Employment Rights Act (USERRA) of 1994

Congress provides additional benefits and job protection for individuals returning to civilian employment after serving in the military (including those with military-related disabilities).

Fifteen or more

employees

Title VII of the Civil Rights Act of 1964

Title VII stipulates that employers may not discriminate on the basis of race, color, religion, sex, or national origin. The Civil Rights Act of 1991 amended Title VII to include the right to jury trials and punitive damages.

Pregnancy Discrimination Act of 1978

Broadens the definition of sex discrimination under Title VII to include pregnancy, childbirth, or related medical conditions. Prohibits employers from discriminating against pregnant women in employment benefits if they are capable of performing their job duties.

Americans with Disabilities Act (ADA)

The ADA requires that companies accommodate qualified individuals with disabilities. Note that this law covers not only employees but also extends to job applicants.

Twenty or more

employees

Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) and Health Insurance Portability and Accountability Act (HIPAA) of 1996

Any employer with a group insurance plan who has twenty or more employees must extend COBRA rights to continued benefits under the plan to all qualified beneficiaries. COBRA allows employees who might otherwise lose their health coverage to continue coverage through their ex-employer's group plan at their own expense. HIPAA requires employers to provide terminating employees with a notice advising them of the availability of continued health insurance coverage.

Age Discrimination

in Employment Act of 1967

(ADEA)

Prohibits discrimination in employment against persons forty years of age or older. Exceptions are permitted where age is a bona fide occupational qualification. All public sector employers are covered regardless of the number of employees. For private sector employers to be covered, however, they must employ twenty or more employees for each working day in each of twenty or

more calendar weeks in the current or preceding year.

Fifty or more

employees

Family and Medical Leave Act (FMLA)

Companies are required to provide unpaid leaves of absence to a maximum of twelve weeks and to guarantee employees the right to return to their jobs if they need to tend to their own or a family member's serious health condition or to bond with a newborn child.

Affirmative Action Plans (AAP)

Federal and state contractors with fifty employees and $50,000 or more in government contracts must develop a written affirmative action plan.

100 or more

employees

Worker Adjustment and Retraining Notification Act (WARN)

Companies must provide sixty days' notice before laying off or terminating fifty or more employees

 
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