As an employer in the United States, you are subject to FLMA, FCRA, HIPAA, OSHA, ERISA, ADA… the list goes on and on – a virtual alphabet soup of federal regulations designed to protect workers. All told, there are more than 180 federal workplace laws the Department of Labor oversees and enforces. In addition to those federal laws, states have their own regulatory framework for companies with employees in those states.
These regulations can be confusing for employers of any size, in any industry. However, “we didn’t know that wasn’t allowed” is not an acceptable defense if you violate the law. In this first installment of a four-part blog series, we will explore some things to be aware of in your hiring practices, including state-specific and jurisdiction-specific rules governing the application, interview, and background check processes.
The Application and Interview Process
Every employer, no matter where they are located, must comply with the EEOC and ADA requirements, as well as federal immigration requirements. In addition, you may be subject to state and local requirements governing this step of the process.
When it comes to requesting information on job application forms and during candidate interviews, you probably already know that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex, race, color, country of origin, or religion. So asking questions that could give you information about any of these protected areas could end up landing your company in hot water later. Remember that the ADA also protects employees from discrimination based on their age and physical health history or handicaps.
While sexual orientation is not on the list of federally-protected statuses, 20 states and many localities prohibit workplace discrimination on the basis of an employee's (or candidate's) sexual orientation or gender identity. Some of those states that have enacted these laws covering employers in either the public or private sector include Colorado, Illinois, Minnesota, and New York.
Before asking candidates to complete job applications, you should be aware of any state-specific, or city/county-specific restrictions. For example, New York City recently passed legislation prohibiting employers from asking about, relying on, or verifying a candidate's salary history (other jurisdictions like Philadelphia and the state of Massachusetts have similar legislation on the books.) There are some nuances to this law, so if you are making New York hiring decisions, familiarize yourself with the law, and how it impacts your organization.
Screening New Hires
When you have narrowed down your candidates and want to make an offer, it's smart to make offers contingent on the candidate successfully passing a background check. Be aware that different states have different rules for using credit checks, criminal background information, and drug screening as part of the pre-employment process.
For example, when it comes to drug testing laws, there are notable differences for employers operating in different states. In Florida, employers may conduct pre-employment drug tests, but only if they have provided advanced notice to applicants. If an employee refuses to take the required test, the employer may use that as a reason not to hire them. In contrast, Minnesota law says that employers can only test candidates if their policies say they do so, if applicants are notified ahead of time, and if all candidates are subject to the same test. In Texas, the law does not place any restrictions on pre-employment drug testing.
ICS clients who work with our Fort Lauderdale, Minneapolis, Houston, or Dallas staffing specialists (as well as those in our other locations) can be confident that we will help them through this process to ensure their state-specific requirements are met. For more about the pre-employment screening process, see our recent blog post about candidate background screening regulations.
Different Regulations Apply to the Ongoing Employment Relationship
After you bring a new employee onboard, you'll be subject to a whole new set of requirements and laws. In the next installment in this series, we’ll discuss issues employers should be mindful of once employees have begun work, including how different states address wage and hour laws, overtime pay, paid breaks, and payday requirements. The third post in this series will address FLMA and time off laws and workplace safety issues. In the final installment, we will delve into how state laws differ when it comes to defining “at will” employment, and pitfalls companies can encounter when terminating employees. Look for this series on every Friday of this month.
As a leading staffing agency for permanent, temporary, and contract workers in the New York, Washington, D.C., Fort Lauderdale, Chicago, Dallas, Houston, Minneapolis, and Denver metropolitan areas, ICS can help you stay in compliance