Legal rights During The Hiring Process

The applicants have legal rights even before they become employees. According to the federal law, an employer may not unlawfully discriminate against the applicant during the hiring process based on race, nationality, gender, pregnancy, age, disability or religion. State and local laws may specify other types of protected classes on the basis of factors such as the sexual orientation of the applicant.

Employers must comply with anti-discrimination laws state during each stage of the recruitment process, from the presentation of the advertisement and the interview, to the selection of the final candidate. Download the Guide to hiring [pdf] FindLaw to count with a practical guide to your rights during the hiring process.

[alert-note]Note: An employer may discriminate on the basis of a “professional qualification of good faith” (bona fide occupational qualification, BFOQ) when the qualification in question is valid and represents a requirement necessary labour.[/alert-note]

Questions of the Employer During the Interview

Generally, employers should avoid questions that relate to the classes protected by the antidiscrimination laws. Below are the questions that employers should avoid doing during the interview:

  • If the applicant has children or expects to have them.
  • The marital status of the applicant.
  • The race of the applicant.
  • The religion of the applicant.
  • The sexual preference of the applicant.
  • The age of the applicant (that is not to ask if it is greater than 18 years).
  • If the applicant has a disability.
  • The status of the applicant in respect of his or her citizenship.
  • Questions regarding the use of drugs or alcohol on the part of the applicant.

The applicant can ask questions related to the topics mentioned above during the interview. If so, the employer can discuss these topics to the extent necessary to respond to applicant questions.

Recruitment process

When an employer is looking to hire a new employee, the employer must do several things before the new employee starts work. For example:

  • To obtain an id number from federal employment for each new employee, the Internal revenue Service (Internal Revenue Service, IRS).
  • Register with the department of state employment for the payment of taxes for unemployment insurance for each new employee.
  • Establish a system of employee payment to withhold tax for the IRS.
  • To obtain insurance of workers ‘ compensation.
  • Prepare a plan for the prevention of injuries and illnesses for the Administration of Occupational Safety and Health (Occupational Safety and Health Administration, OSHA).
  • Publish the required notices in the workplace as established by the Department of Labor (Department of Labor, DOL).
  • Help employees to register and receive benefits for employees.
  • Report federal unemployment taxes to the IRS.

During the hiring process, employers should avoid to make promises to the employee’s new or prospective, because, before the law, false statements or false promises may result in breach of an “implied contract”. For example, promise that the actions will have certain value, that the employee will have the job for life or that you will receive significant increases in his salary, could constitute an implied contract. Therefore, if these promises are not fulfilled, it is considered that the employer has not complied with the implicit contract, and will be responsible for the damages caused to the employee due to such promises.

Legal help to Applicants and New Employees

Before or during the hiring process, prospective employees have certain rights before the law, including the anti-discrimination rules and the law on “contracts implied”. If you believe that your rights were violated during the hiring process (it has been contracted or not), you should talk with a lawyer specializing in right of employees to discuss their options and protect their legal rights.