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New Hires
An employer must take a number of steps before hiring employees. For example, the employer must obtain an employer identification number through the Internal Revenue Service, set up a system to hold the requisite income taxes from employee wages, notify the state administrative agency in charge of labor, and purchase workers compensation insurance.

The United States Citizenship and Immigration Service (USCIS) also has requirements that must be met. For example, a Form I-9, a form used to determine eligibility, must be filled out for each new employee and kept on file (with accessibility) for at least three years after hiring.

Discrimination
Generally employers have discretion over who they hire. Employers can choose not to hire someone for purely personal reasons that have nothing to do with their ability to perform the job. However, an employer is not allowed to discriminate against a (potential) employee. State and/or federal law prohibits and employer from making a hiring decision based upon a potential employee’s: race, national origin, gender, religion, sexual orientation and the presence of a disability.

There are certain steps that an employer can take to protect itself from potential discrimination claims. For example, to avoid a potential disability discrimination suit, an employer should make certain that a disabled applicant can perform the essential functions of a job notwithstanding a reasonable accommodation. A potential employer should also never ask questions about a potential employee’s marital status, children, national origin, or race.

Drug Testing
As employers face more problems with employees being affected with drugs and alcohol and related substance abuse problems, employers face questions about whether to implement policies to test for these substances. State law governs the parameters of drug testing. Some states allow open drug testing, while others allow for no testing. Most states do allow for drug testing at some stage of the hiring process. However, an employment attorney should be consulted prior to the implementation of any specific policies.

Age
Sometimes employers are tempted to make employment decisions based on age. However, hiring decisions must not be based on age but rather the ability of the (potential) employee to perform essential functions of the job.

Where an employer may consider age is in the employment of minors. Both federal and state laws govern the employment of minors. Generally, minors are limited in the number of hours they can work during the school year. Additionally, generally, minors cannot be employed in dangerous environments such as coal mines, manufacturing plants, or construction sites. Further, employers must adhere to work permit and age certificate requirements, where state law requires it. The requirement of an age certificate (or work permit) protects an employer from unknowingly (and illegally) employing underage workers.

The hiring process is a very delicate process. There are complex state and federal laws that must be observed. If in doubt, consulting with an employment attorney should assist you in figuring out whether you are appropriately observing those laws.


Contact us at 877-479-7970, or e-mail us at info@law-thomas.com, to arrange for a confidential complimentary consultation on your employment law needs.
FAQ's
Q: How do I find out if a(n) (potential) employee is legally permitted to work in the United States?
A: Before hiring a new employee the federal government requires that the (potential) employee fill out an I-9 form. This form asks for proof of eligibility to legally work in the United States. This form does not have to be turned into the federal government but must be kept on file for at least three years and be open to inquiry by government officials.

Q: Is disability an acceptable reason for refusing to hire a person?
A: This is only an acceptable reason if the disability will prevent the employee from performing an essential function of the job. However, if there can be a reasonable accommodation made that will permit the disabled applicant to perform the essential task, the accommodation must be made.

Q: Is disability an acceptable reason for refusing to hire a person?
A: This is only an acceptable reason if the disability will prevent the employee from performing an essential function of the job. However, if there can be a reasonable accommodation made that will permit the disabled applicant to perform the essential task, the accommodation must be made.

Q: Do I have to give reasons for not hiring someone?
A: No. A reason does not have to be given for not hiring an employee. But caution should be taken if there is the possibility that an illegal decision was made.

Q: How much do I have to pay my employees?
A: Compensation depends on the employee. Generally, if the employee is not in an executive, professional, or supervisory role, you would have to pay the individual at least minimum wage (state or federal, which ever is higher). Keep in mind also that some industries and other categories of employees may fall under certain minimum wage exemptions.

Q: Can I fire an employee for any reason?
A: The answer to this question depends on the state and the type of job the employee holds. Most states have what is called "at-will" employment. This means that the employee can be fired at any time for any legal reason. Some jobs are covered by contract in which case a legitimate reason would have to be offered for termination.

Resources
This site features all of the federal government information of employment practices and laws regarding such things as wages and hiring. This site also provides links to state law documents.

This site provides an overview of laws within the scope of the EEOC. These laws include Title VII of the Civil rights Act of 1964 and the Age Discrimination in Employment Act of 1967. The site also features a short question and answer section.

Official United States Government Website - The official U.S. government website provides both general information and also access to online forms for use by an employer. Links to the IRS and the United States Citizenship and Immigration Service are provided.

Legal Information Institute - This site provides general legal information about employment law. The site also provides information on specific employment related subjects such as pensions and workers' compensation.

Occupational Safety and Health Administration - This site provides detailed information on safety standards that have to be followed in most industries. This link is both employee and employer centered.