Hiring Employees

Once you have made the decision to hire employees, in addition to having to comply with various state and federal laws and regulations pertaining to the workplace such as family leave, discrimination, harassment, worker's compensation and safety regulations, there are a number of mandatory forms that are required to be filled out upon hiring your first or any subsequent employee. For example, all U.S. employers are required to complete and maintain an Employment Eligibility Verification I-9 Form for each individual they hire for employment in the United States. This includes citizens and non-citizens alike. On the form, the employer must verify the employment eligibility and identity documents presented by the employee and record the document information on the Form I-9. You will also need to have each employee complete withholding certificates, such as IRS Form W-4, Employee?s Withholding Allowance Certificate, and IRS Form W-5, Earned Income Credit Advance Payment.

Interview Questions

Under Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA), it is illegal to discriminate in any aspect of employment, including the hiring of employees, on the basis of sex, age, race, national origin or religion. In addition, many state and local laws prohibiting discrimination often prohibit additional types of discrimination, including discrimination on the basis of marriage, sexual orientation and weight. To learn about the anti-discrimination laws in your state, contact your state labor department or your state fair employment agency, who enforces these laws.

Reference Checks

  Often a potential employer will contact an applicant's past employers. And while a former employer can say anything truthful about your performance, most employers have a policy to only confirm dates of employment, job title, final salary, and other limited information. This is because some states have laws that prohibit employers from intentionally interfering with former employees' attempts to find jobs by giving out false or misleading references. However, if the applicant signs a "waiver and hold harmless agreement" as a condition for applying for his or her previous employment, the applicant?s previous employer may feel more comfortable specifying additional information described in the agreement. Thus, it is wise to consider having an Agreement be a part of your standard employment documents that an applicant completes upon initial employment.

Credit and Background Checks

For some jobs, background screening is required by federal or state law. For example, most states require criminal background checks for anyone who works with children, the elderly, or disabled. The federal National Child Protection Act authorizes state officials to access the FBI's National Crime Information Center (NCIC) database for some positions. Many state and federal government jobs require a background check, and depending on the kind of job, may require an extensive investigation for a security clearance. The current emphasis on security and safety has dramatically increased the number of employment background checks conducted.

However, not all background checks are limited to a criminal history check, but can vary from one prospective employer to the next, depending on what the employer thinks is important to review before hiring. A check can include a number of items (some requiring the applicant's authorization), such as:

 

• Criminal Records
• Credit Reports
• Driving Records
• Education Records
• Bankruptcy Records

 

Employments Contracts

The terms of an employment contract can vary greatly depending on its purpose. Some companies have all its employees sign the same employment agreements, while others are asked to sign contracts specifically tailored to their job duties and responsibilities. Sometimes, employment agreements are oral, and can even be implied based upon the conduct of the employer and the employee. Below are the most common types of employment agreements, which can be the entire contract, or are often one part of a larger agreement:

• Confidentiality Agreement
• Non-Competition Agreement
• Arbitration
• Termination
• Choice of Law
• Forum Selection
• Ownership of Inventions
• Best Efforts
• Exclusive Employment
• No Additional Compensation
• No Authority to Contact

 

Anti-Discrimination Laws

If you employ four or more people, you must be in compliance with anti-discrimination laws during all phases of the hiring process, from placing a help-wanted ad to conducting a job interview to choosing your new employees. The federal laws, which apply to employers in all 50 states, generally prohibit discrimination on the basis of race, gender, pregnancy, national origin, religion, disability and age (if the person is older than 40). If you are an employer with at least 15 employees, you must follow the federal laws (although the prohibition against age discrimination only applies to employers with 20 or more employees) that are described more specifically in other sections of this site

Title VII

Title VII of the Civil Rights Act of 1964 (Title VII) (42 USC ?2000e) prohibits not only intentional employment discrimination based on race, color, religion, sex, or national origin, but also prohibits practices that have the effect of discriminating against individuals for any of these reasons. Title VII applies to employers with fifteen (15) or more employees, including federal, state and local governments, and labor and employment organizations. It is enforced by the EEOC (www.eeoc.gov/laws/vii.html).

Title VII also sets forth broad prohibitions against sex discrimination including sexual harassment and pregnancy based discrimination. Sexual harassment includes practices ranging from direct requests for sexual favors to workplace conditions that create a hostile environment for persons of either gender, including same sex harassment. And pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions.

Age Discrimination in Employment Act (ADEA)

The Age Discrimination in Employment Act of 1967 (ADEA) (29 USC ?621), protects most employees and job applicants who are 40 years of age or older from discrimination because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training . It prohibits statements or specifications in job notices or advertisements of age preference and limitations. An age limit may only be specified in the rare circumstance where age has been proven to be a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the business. It also prohibits discrimination on the basis of age by apprenticeship programs, including joint labor-management apprenticeship programs, unless they fall within specific exceptions or are granted exemption by the EEOC. The ADEA, as amended by the The Older Workers Benefit Protection Act of 1990 (OWBPA), also prohibits denial of benefits to older employees, who are generally more costly to insure, which often serves as a disincentive to hire older employees. An employer may only reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers. The ADEA also makes it unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA.

Americans With Disabilities Act (ADA)

The Americans with Disabilities Act of 1990 (ADA) was enacted into federal law on July 26, 1990. Different sections of the ADA went into effect at different times in 1992. This Act prohibits employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments, by requiring employers to provide reasonable accommodations for the individual. 42 USC 12101, www.eeoc.gov/laws/ada.html. The purpose of the ADA is to make employment opportunities available to as many people as possible, even if it means the employer must go out of its way to accommodate the special needs of a particular employee. The ADA applies to employers with fifteen (15) or more employees, including state and local governments and agencies. This Act is enforced by the EEOC.

Under the ADA, a 'Qualified Individual with a Disability' is an individual with a disability who satisfies the skills, experience, education, and other job-related requirements of the position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of that position. Thus, the individual is ?qualified? to perform the job. An ?Individual with a Disability? is a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Major life activities are activities that an average person can perform with little or no difficulty such as walking, breathing, seeing, hearing, speaking, learning, and working. And while a past history of drug or alcohol abuse is covered by the ADA, employees and applicants currently engaging in the illegal use of drugs are not protected by the Act.

Equal Pay Act

The right of employees to be free from discrimination with respect to their compensation is protected under several federal laws, including the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Title I of the Americans with Disabilities Act of 1990. Each of these Acts are enforced by the Equal Employment Opportunity Commission (www.eeoc.gov/laws/epa.html).

The Equal Pay Act of 1963 (29 USC ?206(d)), which applies to most employers with one or more employees, protects men and women who perform substantially equal work (similar skill, effort, and responsibility for the same employer under similar working conditions) from sex-based wage discrimination.

• Skill - Measured by factors such as the experience, ability, education, and training required to perform the job. The key issue is what skills are required for the job, not what skills the individual employees may have. For example, two bookkeeping jobs could be considered equal under the EPA even if one of the job holders has a master's degree in physics, since that degree would not be required for the job.
• Effort - The amount of physical or mental exertion needed to perform the job. For example, suppose that men and women work side by side on a line assembling machine parts. The person at the end of the line must also lift the assembled product as he or she completes the work and place it on a board. That job requires more effort than the other assembly line jobs if the extra effort of lifting the assembled product off the line is substantial and is a regular part of the job. As a result, it would not be a violation to pay that person more, regardless of whether the job is held by a man or a woman.
• Responsibility - The degree of accountability required in performing the job. For example, a salesperson who is delegated the duty of determining whether to accept customers' personal checks has more responsibility than other salespeople. On the other hand, a minor difference in responsibility, such as turning out the lights at the end of the day, would not justify a pay differential.
• Working Conditions - This encompasses two factors: (1) physical surroundings like temperature, fumes, and ventilation; and (2) hazards.
• Same Employer/Same Establishment - The prohibition against compensation discrimination under the EPA applies only to jobs within an establishment. An establishment is a distinct physical place of business rather than an entire business or enterprise consisting of several places of business. However, in some circumstances, physically separate places of business should be treated as one establishment. For example, if a central administrative unit hires employees, sets their compensation, and assigns them to work locations, the separate work sites can be considered part of one establishment.

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