Illegal hiring laws refer to employment regulations that dictate the acceptable practices employers must adhere to during the selection and hiring phases of employment.
These laws are in place to protect prospective employees’ legal rights during the hiring process, with the Equal Employment Opportunity Commission (EEOC) primarily overseeing these regulations.
The EEOC prohibits discrimination against job applicants based on their race, color, religion, sex, national origin, age, or disability.
State illegal hiring laws also protect applicants from discrimination, offering additional layers of protection.
What Are Some Notable Examples of Illegal Hiring Practices?
Illegal hiring practices encompass various activities that violate the rights of prospective employees, including:
Discrimination Through Employment Policies and Practices
The EEOC extends protections to applicants by barring employers from implementing policies or practices that disproportionately harm applicants based on their protected characteristics, such as race, religion, sex, disability, etc. These policies and practices must be job-related and necessary for business operations.
Discriminatory Job Advertisements
Job advertisements discouraging applicants based on protected characteristics or showing a preference may also violate the law. For instance, ads targeting recent high school graduates or seeking female applicants may discourage men or older qualified people from applying, thereby breaking the law.
Hiring Illegal Workers
Under federal law, it is unlawful for employers to hire, recruit, or refer illegal immigrants for work. This law extends to hiring contractors who employ illegal immigrants. Employers must complete an I-9 form within three days of hiring, and failing to do so carries both criminal and civil penalties.
Pre-employment Inquiries
Information gathered or requested from applicants during the hiring process should only pertain to determining job qualifications.
Questions about an applicant’s age, race, sex, national origin, gender identity, and other protected characteristics are generally irrelevant and should be avoided.
Inappropriate inquiries may include asking about marital status, having children, or any questions related to protected characteristics.
Retaliation Against Applicants
Employers are prohibited from retaliating against individuals who have opposed discrimination or participated in discrimination investigations, even if the discrimination allegations are unfounded.
Refusing to Provide Reasonable Accommodations
Employers are required to provide reasonable accommodations to individuals with disabilities to enable them to perform their job functions unless doing so would result in undue hardship to the employer. Failure to provide reasonable accommodations can result in a discrimination claim.
Inappropriate Background Checks
Employers must follow specific guidelines when conducting background checks on prospective employees, including obtaining consent and informing applicants of their rights. They must also avoid using certain types of information, such as arrests that didn’t result in convictions or bankruptcies, as a basis for hiring decisions.
Offering Unlawful Terms of Employment
Employers may not offer terms of employment that discriminate against applicants based on their protected characteristics. This discrimination includes offering lower wages to female employees, denying promotions to individuals of a particular race or religion, or providing different working conditions based on an employee’s age.
Using Physical Characteristics as a Basis for Hiring
Employers may not use an applicant’s physical characteristics, such as weight or height, as a basis for hiring unless such characteristics are directly related to the job’s duties.
Asking for Salary History
Many states have banned employers from asking about an applicant’s salary history, as it can perpetuate pay disparities based on gender and other protected characteristics.
What Are the Legal Consequences of Violating Illegal Hiring Laws?
Violating illegal hiring laws may result in civil fines for each offense, civil lawsuits, suspension of business licenses, and criminal penalties, including fines and imprisonment.
- Civil Fines: Employers who violate federal and state employment laws may be subject to fines. For instance, the penalty for violating the Immigration Reform and Control Act (IRCA) can range from $548 to $21,916 per unauthorized worker for a first-time offense. At the same time, subsequent violations can result in fines of up to $54,912 per worker.
- Civil Lawsuits: Applicants who believe they have been discriminated against during the hiring process may file civil lawsuits against employers. If found liable, employers may be required to pay damages, including back pay, front pay, and compensatory and punitive damages.
- Suspension of Business Licenses: Employers who engage in illegal hiring practices may have their business licenses suspended or revoked, making it impossible to operate legally.
- Criminal Penalties: Employers who knowingly violate employment laws may face criminal penalties, including fines and imprisonment. For example, an employer who engages in document fraud, such as creating fake documents to verify an employee’s eligibility to work in the U.S., may be charged with a felony offense and face up to five years in prison and/or fines.
How Can Employers Avoid Illegal Hiring Practices?
To avert illegal hiring practices, employers should develop a thorough understanding of employment laws and protections for job applicants in their area. Developing a thorough understanding includes familiarizing themselves with federal, state, and local regulations.
Before starting the hiring process, employers should develop a plan, which may involve:
- Ensuring proper business registration, obtaining a federal employment identification number (EIN) from the IRS, and registering with the state’s employment department for tax payments: Employers must obtain an EIN from the IRS to identify their business for tax purposes and register with the state’s employment department and make regular tax payments to comply with state employment tax requirements.
- Verifying that appropriate employee tax withholdings are in place: Employers must withhold federal income tax, Social Security tax, and Medicare tax from their employee’s wages and pay these taxes to the IRS.
- Obtaining workers’ compensation insurance to minimize business liability: Workers’ compensation insurance provides benefits to employees who are injured or become ill as a result of their job duties.
- Ensuring all required notices are posted in the workplace, as mandated by the Department of Labor (DOL): Examples of notices that may be required to be posted include the minimum wage notice, the Employee Polygraph Protection Act notice, the Family and Medical Leave Act notice, and the Occupational Safety and Health Administration (OSHA) poster.
Consulting with industry peers and local legal professionals can provide valuable insights for developing a compliant hiring plan, ultimately helping businesses avoid illegal hiring practices.
Do I Need an Attorney for Help With Illegal Hiring Laws?
If you feel that you’ve been discriminated against during the hiring process or while employed, and you’re either an applicant or an employee, it’s time to seek legal counsel right away.
Look for licensed discrimination lawyers in your area who can help you file a claim against your employer and represent you in court if necessary.
With the help of an experienced attorney, you can take steps to protect your rights and seek justice for any discrimination you’ve experienced.
LegalMatch can help you find a licensed discrimination lawyer in your area who can assist you with your discrimination claim. LegalMatch is an online legal service that matches clients with attorneys whoh handle their legal issues.
By filling out a brief online form, LegalMatch can connect you with several discrimination lawyers who have experience in handling cases like yours. You can then review their profiles, compare their experience and fees, and select the lawyer you think best fits your case.
With LegalMatch’s help, you can find a qualified lawyer to guide you through the legal process and protect your rights.
