Job applicants and employees are protected by federal employment discrimination laws to ensure they are not being treated unfairly in the workplace based on factors that should have no bearing on how they do their job. Before hiring employees to work at your small business, it is important to have a solid understanding of the employment laws you must follow. Failure to comply with these laws could result in lengthy and expensive court proceedings.
A Quick Overview
It is against federal law to determine who you hire or fire based on their age, unless you fail to hire someone because they aren’t legally old enough to work. In addition, as a business owner, you cannot base your decisions on a person’s disabilities, race or ethnicity, or gender. While these are the most common factors, it is also important to understand the Equal Pay Act of 1963, the Federal and Medical Leave Act (FMLA) and the Pregnancy Discrimination Act.
The Equal Pay Act of 1963 bans employers from paying one gender less than the other for the same job because it is considered a form of sexual discrimination. FMLA requires covered employers to provide employees with up to 12 weeks of unpaid leave in a 12-month period to take care of family obligations without fear of losing their job. Family obligations include the birth, adoption or foster of a child, caring for a sick spouse, parent or child, serious health conditions the employee suffers from, or qualifying situations that arise due to an immediate family member being active-duty military. Finally, the Pregnancy Discrimination Act, an amendment to the Civil Rights Act of 1964, states that employers cannot fire a woman because she is pregnant, has given birth or is dealing with related medical conditions.
It is important to note that businesses must follow any state laws regarding discrimination as well. For example, while the federal government does not currently have a law to protect lesbian, gay, bisexual, transgender or similar individuals, many states have their own laws in place for these situations.
Questions to Avoid During the Hiring Process
To ensure you are not violating any federal employment discrimination laws, you must understand what you can and cannot ask or do during the process of hiring new employees. For example, applicants have the right to privacy when it comes to their relationships, children, drug and alcohol use and country of origin, so it might be illegal to ask these questions. You are still allowed to ensure your employees are clean and sober while doing their jobs, but you cannot ask them whether they spend their free time using substances.
Background Checks
Background checks are another tricky area. Just because you can do one doesn’t mean you can use all of the information you find to make your decision. In most cases, the information you are allowed to use will vary by state, so be sure to check with state laws. For example, you can check out an applicant’s driving record if they will be driving company vehicles, but you can’t use the information if they are applying for an office job. Only some states allow access to criminal records and credit history. Education records are allowable with consent of the applicant, but military records are protected under the Federal Privacy Act. While bankruptcy and workers’ compensation records are public, you cannot use them to make your decision in many cases. Medical records are confidential unless the job requires your employee to be in a specific state of health.
When in doubt about your situation, always speak with your lawyer. Often employers end up defendants in discrimination lawsuits simply because they were unaware they were breaking the law. Having an understanding of how these laws impact your business will keep you and your employees happy.
Legal Disclaimer
The content on our website is only meant to provide general information and is not legal advice. We make our best efforts to make sure the information is accurate, but we cannot guarantee it. Do not rely on the content as legal advice. For assistance with legal problems or for a legal inquiry please contact you attorney.