Finding new employees who have the necessary skills and personality to fit in with your company’s culture can be difficult, but navigating a sea of employment laws during the recruiting process is even harder and could, if not adhered to, spell legal disaster for your company. For this reason, it pays to stay current and regularly train staff to avoid costly mistakes.
Here are 10 frequently asked questions that may help.
Q: When hiring new employees, what laws must I follow?
There are many state and federal laws governing what can and can’t be done during every stage of the hiring process, including advertising, interviewing, investigating, testing and selecting new employees. In general, you must:
Avoid illegal discrimination
Observe the laws for hiring immigrants
Observe the laws for hiring young workers
Respect the privacy rights of all applicants
Avoid making promises you can’t keep
Q: Can I hire someone who is under 18 years of age?
For some jobs, yes. There are a few restrictions regarding the employment of someone under 18 years of age. These restrictions concern:
The job hours. Is it full-time or part-time? There are often restrictions on the hours a minor can work
The type of job. For example, is it agricultural or hazardous?
Your relationship to the applicant. Is the applicant a relative?
Q: Do I have to advertise open positions?
By law, a private employer is not required to advertise open positions. These position can be filled any way the employer wants. Even so, you may still want to advertise, for two compelling reasons:
Advertising will attract a larger applicant pool, increasing your chances of finding the right person for the job
You avoid unintentional discrimination. For example, although it would not be your intention, relying entirely on word of mouth for your hires may result in only applicants of your race and class, and then your hiring process could be viewed as discriminatory.
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Q: Is it ever acceptable to consider someone’s disability when filling a position?
No, unless an applicant is unable to perform a necessary part of the job because of his/her disability.
Q: Is it okay to ask someone if they are an illegal alien?
Sort of, but not in so many words. You are allowed to ask the applicant if he/she is legally authorized to work in the United States on a full-time basis. However, because discrimination against people because of either their national origin or their lack of U.S. citizenship is illegal, you should avoid digging for details of an applicant’s citizenship.
Q: If I accidentally hire someone who is not legally permitted to work in the United States, will I get into trouble?
No, if it was a reasonable mistake it will be forgiven. The law only forbids an employer from knowingly hiring an unauthorized worker.
Q: If I know that an applicant has a problem with drugs or alcohol, can I refuse to hire him on that basis?
Yes, an employer is allowed to refuse employment to someone solely because of their current use of alcohol or drugs.
Q: If I know that an applicant previously had a problem with drugs or alcohol, can I refuse to hire him on that basis?
No. According to a federal law (42 USC Section 12114(b)) you are prohibited from discriminating against applicants who:
No longer abuse drugs or alcohol and are successfully rehabilitated from past abuse of drugs or alcohol
Have participated in a rehabilitation program and no longer abuse alcohol or drugs
Are rumored to have abused alcohol or drugs but did not and do not actually abuse them. You should not ask about past abuse on a job application or during an interview, and a candidate’s past abuse of alcohol and drugs is not allowed to be considered when making your hiring decision.
Q: Can I refuse to hire someone just because I don’t like him or her?
Yes. There are many reasons why you may want or not want to hire someone to work for you, and your personal impressions of the person, including whether you like him or her, will certainly be among these reasons. Just be sure to avoid allowing prejudices to enter into whether or not you like someone. Doing so may cause you to violate anti-discrimination laws.
Q: When I hire someone, do I have to give him/her a written employment contract?
No. You are not required by law to provide a written employment contract. There are times, of course, when having a contract can be beneficial.