Employment Law Information Center

The Hiring Process

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

Employer Interview Questions

Generally, employers should avoid asking questions that relate to the classes protected by discrimination laws. The following examples are the types of queries that are illegal for prospective employers to ask:

• Whether the applicant has children or intends to have children
• Applicant's marital status
• Applicant's race
• Applicant's religion
• Applicant's age (other than inquiring whether over age of 18)
• Whether applicant has a disability
• Applicant's citizenship status
• Questions about whether the applicant has ever had a drug or alcohol problem

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

Hiring Process

Whenever an employer seeks to hire a new employee, the employer should take a number of steps before that new employee begins work:

• Obtain the employee's Social Security number or IRS Individual Taxpayer Identification Number (ITIN)
• Have the employee fill out a W-4 form for income tax withholding
• Ensure that Occupational Safety & Health Administration (OSHA) regulations are being followed
• Arrange to pay relevant federal and state unemployment compensation taxes
• Arrange to pay Social Security and Medicare taxes for the employee
• Ensure that workers' compensation insurance covers the new employee
• Ensure that required labor notices are posted in the workplace as required by the Department of Labor (DOL)
• Assist new employee with registration for employee benefits

When an employer hires a new employee, the employer should be careful to avoid making promises to the employee that it may not be able to keep. Such false statements or promises on behalf of the employer may result in breach of contract. An employer should be careful not to exaggerate 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 kept, the employer may be responsible to the employee for 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 employees. If have any questions about these issues, an employment lawyer can help.

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