Hiring Process: What You Need to Know
While employers have the right to hire the people they feel are the right fit for their company, there are a number of federal and state laws regarding the hiring process that must be noted. Antidiscrimination laws prevent candidates from being disqualified because of their gender, national origin, race or other protected characteristics. Employment contracts protect both employer and employee from trouble throughout their relationship. Hiring independent contractors may be a way to save the company money, but if they employees are misclassified, the company may come under scrutiny from the Internal Revenue Service. Gaining an understanding of these and other legal issues is a good way to avoid litigation.
Job Applications and Interviews
Employers may ask questions related to the job duties to identify whether an applicant is capable of performing them. However, there are many topics that are not relevant and should not be included on the application or in the interview.
Antidiscrimination laws protect certain classes from bias in the hiring process. So, applicants should not be asked about their religion, race or sexual preference, or their marital status, citizenship status, and whether they have a mental or physical disability. Women should not be asked if they are pregnant or planning to become pregnant, and employers should not ask interviewees whether they have children. If the applicant asks a question regarding one of these topics, the interviewer may answer them, but may not take the discussion further.
Age may be a relevant factor that should be discussed if the job duties are not available to minors. For example, teenagers 17 years of age or younger are restricted from performing some hazardous jobs, and some laws place limitations on the hours that minors may work. However, it is against the law to eliminate an applicant because he or she is over the age of 40.
The application and interview processes are not the time to discuss details regarding pay and benefits, as they could be misconstrued as an implied contract. If the actual terms do not match what was mentioned previously, the employer could be liable for a breach of contract in some states.
Once the offer has been extended, it is a good idea to provide information in writing. This may include the job title and duties and the employee’s workweek hours or schedule. The employee may also want to know about whether the company offers bonuses, commissions, relocation expenses, cost-of-living raises or other pay increases before accepting the position.
In most states, the employer may retain the right to terminate the employee at any time because of an at-will employment law. Some state laws identify company policies as implied contracts if they provide details about termination procedures. Similarly, if there is a contract that specifies the length of time that the employee will remain at the company, this may not be violated by early termination. Verbal contracts are also recognized in some states, but there are typically restrictions that apply to their enforcement.
In addition to the basic information about job duties, compensation and schedule, a formal employment contract generally includes specifics about issues that affect the employee/employer relationship. This may include grievance procedures, grounds for termination and confidentiality agreements during the course of the employment and after it ends. An employee is typically also required to relinquish ownership of any inventions that were created while on the job.
Confidentiality and non-compete agreements prevent employees from sharing trade secrets with others, and from leaving the company and immediately going to work for or become a competitor. Many contracts specify that the employee may not perform the same kind of work for a similar business throughout the course of the employment.
Contractor or Employee
Sometimes, it makes sense for a company to hire an independent contractor to perform certain duties rather than hiring employees. For example, cleaning, security, accounting and other services are often contracted out. In these cases, the company pays the contractor for the job, but does not typically provide training or benefits. Independent contractors often hire their own employees to fulfill the job duties.
Independent contractors are self-employed, so they pay their own taxes. Because the company is not responsible for withholding Social Security taxes, paying unemployment taxes and other tax burdens, the idea of replacing employees with independent contractors may be very appealing. However, if independent contractors are treated as employees, the IRS could become interested in examining the classification. If there are signs of misclassification, the company could get in a lot of trouble.
Employment litigation is a serious matter, but proactive steps during the hiring process can prevent many legal issues from arising.
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.