Job Seeker’s Guide: Employment Law in a Nutshell

Job Seeker Guide Employment Law in a Nutshell - ResumeButterfly Job Search AdviceWhen applying for a job, what most candidates say they want is a level playing field — the opportunity to be considered for employment because of their skills, experience, and education, without consideration of how they look, what they wear for religious reasons, or how old they are. In other words, they want a hiring environment free of discrimination.

There are a number of local, state, and federal laws that employers must follow when hiring employees. Generally speaking, these laws prohibit discrimination in employment based on race, color, religion, sex, age, ethnicity/national origin, disability, or veteran status.

With so many government agencies involved in creating laws for hiring and employment, it’s no wonder companies get confused. In some instances, these may affect you, the jobseeker, as you may face potential discrimination in the application and/or hiring process.

There are laws to govern how many hours you can work (Fair Labor Standards Act), the type of work you can perform in certain industries (Migrant and Seasonal Agricultural Worker Protection Act, for example), and even the types of benefits some types of companies can offer (Employee Retirement Income Security Act).

This guide, however, is designed to familiarize you specifically with laws relating to applying for jobs, interviewing, and getting hired. Note: The information in this guide is not intended to provide legal, medical, or financial advice. If legal, medical, or financial advice is needed, an appropriate professional should be consulted.

You are most likely to encounter these situations in smaller companies, where the owner or hiring managers handle applications, interviews, and job offers directly; however, discrimination occurs in companies of all sizes.

Here is an analysis of some of the most relevant laws for jobseekers.

Immigration and Nationality Act of 1952

The Immigration and Nationality Act (INA) addresses employment eligibility, employment verification, and nondiscrimination in hiring. Under this law, employers may only hire candidates who are legally eligible to work in the U.S. (i.e., citizens and U.S. nationals) and aliens authorized to work in the U.S.

Employers must verify the identity and employment eligibility of anyone hired, including completing an Employment Eligibility Verification Form (I-9 form) for each applicant. These forms must be kept on file for at least three years, or one year after employment ends, whichever is longer. Newly-hired employees must complete and sign the top section of the form (which collects biographical data) no later than the first day of employment. However, Section 1 should never be completed before you accept a job offer.

Employers must complete Section 2 of the I-9 form within three business days of your first day of employment. Candidates will present documents to verify their identity, choosing from a list of acceptable documents outlined on the form. The identification establishes your identity and employment authorization.

The INA protects U.S. citizens and aliens authorized to accept employment in the U.S. from discrimination in hiring or discharge on the basis of national origin and citizenship status.

Another section of the act applies to employers seeking to hire nonimmigrant aliens as workers in specialty occupations, often referred to as “H1-B workers.” This is more common in the engineering, teaching, technology, and medical professions. The number of new H1-B visas that can be issued each year is subject to a cap.

Relevance to Jobseekers:

•    You will be asked for documentation to complete an I-9 form at the time of hiring. You can review the I-9 form here: http://www.uscis.gov/files/form/i-9.pdf

•    As it relates to H1-B workers, a H1-B candidate cannot displace a current employee; however, as a job applicant, you may be competing with H1-B candidates.

The Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 protects applicants from discrimination in hiring. Protection is granted on the basis of the applicant’s race, color, religion, sex (including pregnancy), and national origin.

Religious discrimination includes an employer failing to provide reasonable accommodations for an employee’s religious practices if the accommodation does not create an undue hardship for the employer.

Age Discrimination in Employment Act

The Age Discrimination in Employment Act of 1967 (ADEA) protects jobseekers who are 40 years of age — or older — from age discrimination in hiring. However, it is not illegal for an employer to favor an older job applicant over a younger one, even if both workers are age 40 or older. The law also forbids harassment because of age — for example, offensive remarks or repeated jokes about a person’s age.

The ADEA applies to employers with 20 or more employees, including state and local government entities.

Relevance to Jobseekers:

•    The ADEA generally makes it unlawful to include age preferences, limitations, or specifications in job notices or ads. A job notice or ad may specify an age limit only in the rare circumstances where age is shown to be a “bona fide occupational qualification” (BFOQ) — for example, airline pilots must retire at age 65 in the U.S.

•    In general, you should not be asked your date of birth or age on an application or in an interview, although the ADEA does not specifically prohibit this. However, you may file a complaint if you feel you were discriminated against because of your age, and the request for age information will be “closely scrutinized to makes sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA.”

The Rehabilitation Act of 1973

Section 503 of the Rehabilitation Act of 1973 (as amended), is very similar to the Americans With Disabilities Act (ADA). It requires certain employers (including those with federal contracts or subcontracts) to take affirmative action to hire, retain, and promote qualified individuals with disabilities.

Covered disabilities include a wide range of mental and/or physical impairments that “substantially limit or restrict a major life activity,” such as hearing, seeing, speaking, walking, breathing, performing manual tasks, caring for oneself, learning, or working. In addition, individuals who have recovered from their disabilities may not be discriminated against because of their past medical history.

Relevance to Jobseekers:

•    The law only protects against discrimination for disabilities. You must possess the necessary education, skills, or other job-related requirements to be considered for the position. You must also be able to perform the essential functions of the job — the fundamental job duties of the position you desire — with or without reasonable accommodation (which require the employer to make adjustments or modifications in the work, job application process, work environment, job structure, equipment, employment practices, or the way that job duties are performed so that an individual can perform the essential functions of the job.)

•    You may be asked whether you are an individual with a disability, or the nature or severity of such disability. You may be asked about your ability to perform job-related functions and/or be asked to describe or demonstrate how — with or without reasonable accommodations — you will be able to perform the duties of the job.

•    You may be asked to take a medical examination, but only if all candidates seeking the same job category are required to complete a medical examination. An offer of employment may be conditional depending on the results of the examination.

Pregnancy Discrimination Act

In 1978, Congress amended Title VII of the Civil Rights Act of 1964 to enact the Pregnancy Discrimination Act (PDA). This law forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring. If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered organization must treat her the same way it treats any other temporarily disabled employee. For example, the employer may have to provide light duty assignments, disability leave, or unpaid leave to pregnant employees, if it does so for other temporarily disabled employees.

Relevance to Jobseekers:

•    You do not have to disclose your pregnancy to a prospective employer when applying for a position. However, you may not want to change jobs during pregnancy if your health care coverage would be affected by a new position. If the new employer offers health care coverage, there may be a waiting period before coverage begins. However, insurance coverage for a pregnancy generally cannot be denied within a group insurance plan. The Health Portability and Accountability Act of 1996 (HIPAA) ensures that group health insurance plans cover pregnancy, in most cases. However, if your new employer does not offer a health insurance benefit, you may find it difficult to obtain an individual policy that covers your pregnancy-related claims.

•    An employer cannot refuse to hire a woman because of her pregnancy, as long as she is able to perform the major functions of her job.

•    Under the Family and Medical Leave Act of 1993 (FMLA), a new parent (including foster and adoptive parents) may be eligible for 12 weeks of leave (unpaid, or paid if the employee has earned or accrued it) that may be used for care of the new child. However, to be eligible, the employee must have worked for the employer for 12 months prior to taking the leave, and the employer must have a specified number of employees.

Immigration Reform and Control Act

Discrimination on the basis of national origin involves treating applicants unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not). National origin discrimination can also extend to treating candidates unfavorably because they are married to (or associated with) a person of a certain national origin, or because of their connection with an ethnic organization or group.

The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal for an employer to discriminate with respect to recruitment and hiring based on an individual’s citizenship or immigration status. The law prohibits employers from hiring only U.S. citizens or lawful permanent residents unless required to do so by law, regulation, or government contract.

Employers may not refuse to accept lawful documentation that establishes the employment eligibility of an employee, or demand additional documentation beyond what is legally required, when verifying employment eligibility, based on the employee’s national origin or citizen status.

Relevance to Jobseekers:

•    Discrimination on the basis of national origin may begin with your initial application to the company. An employer may be reluctant to call an applicant whose name he or she cannot pronounce, so providing a nickname on the résumé or job application may help.

•    If a phone interview goes well but the in-person interview does not, your national origin may or may not be the issue. It can be difficult to find out exactly why you were not hired.

For example, if you wear a hijab for religious or cultural reasons, an employer may be worried about how the company’s customers would react to it. However, customer preference is never a justification for a discriminatory practice.

The employer is not likely to articulate that as the reason why you were not selected for the position. Even though you might feel that was the reason you were not hired, a fuller explanation of the employer’s business reasons would be needed to determine whether or not discrimination was involved.

The Americans With Disabilities Act of 1990

Title I of the Americans With Disabilities Act of 1990 (ADA) protects qualified individuals from discrimination in hiring on the basis of disability. Covered employers must make reasonable accommodations for known physical and/or mental limitations of an otherwise qualified individual (unless it creates an “undue hardship” on the employer).

The term “qualified” means that you have the skills, experience, education, and other job-related requirements of the position being sought, and can perform the essential job functions of the position, with or without reasonable accommodation.

Not all employers are required to comply with the ADA. Covered organizations include private employers with 15 or more employees, employment agencies, and labor organizations. State and local government employers must also comply with the ADA.

Accommodations are considered “any modification or adjustment to a job or work environment that enables a qualified person with a disability to apply for or perform a job.” It also includes alterations to ensure a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities.

Relevance to Jobseekers:

•    When applying for a position, the prospective employer may not ask you to answer medical questions or take a medical exam before extending a job offer. You may not be asked if you have a disability (or about the nature of an obvious disability). You can be asked, however, whether you can perform the job and how you would perform the job, with or without a reasonable accommodation. (After you are offered the job, an employer can make the job offer contingent on passing a required medical examination, but only if all candidates for that job category have to take the examination.)

•    You may request an accommodation at any time during the application process. (You can also request an accommodation after you are hired, even if you did not ask for one when applying for a job or after receiving a job offer). You may make the request orally or in writing.

•    It is important to note that you do not need to let a prospective employer know that you have a disability. However, unless, you let the employer know that you have a disability, the employer is not obligated to consider accommodations under the ADA. (And the employer may request medical documentation to establish that the employee has an ADA disability and needs the requested accommodation.)

From a practical standpoint, you should not request an accommodation during the application process unless there is a workplace barrier that prevents you, due to a disability, from competing for a job or performing the job. Likewise, you should not reference your medical history when applying for a position (for example, to account for a gap on your résumé or explain a job change on your cover letter) unless absolutely necessary — or if it is relevant to the position you are seeking.

The only limitation on an employer’s obligation to provide reasonable accommodations is that no change or modification is required if it would cause “undue hardship” to the employer — meaning significant expense or difficulty in making the accommodation (for example, if the modification would be disruptive, or if it would fundamentally alter the nature or operation of the business).

•    If you have a disability, check out http://earnworks.com/refdesk/FAQ/FAQ_Jobseekers for agencies that can assist you with employment.

•    If you have a disability and feel you were discriminated against in the hiring process, you can file a complaint with the EEOC or your state enforcement agency. For information regarding the complaint process, visit http://www.eeoc.gov/employees/charge.cfm

Genetic Information Nondiscrimination Act

One of the newer candidate protection regulations is the Genetic Information Nondiscrimination Act of 2008 (GINA), which protects applicants from discrimination in hiring based on genetic information. GINA restricts employers’ acquisition of genetic information and strictly limits disclosure of genetic information, including information about genetic tests the applicant may have received, the manifestation of diseases or disorders in applicant’s family members, and requests for receipt of genetic services.

GINA was enacted, in large part, because of developments in the field of genetics, the decoding of the human genome, and advances in the field of genomic medicine. Genetic tests now exist that can determine whether individuals are at risk for specific diseases or disorders. The law addresses the concerns of individuals who fear the loss of health coverage or employment because of their genetic information.

Relevance for Jobseekers:

•    Some employers are self-insured, meaning that they pay for health care costs for their employees directly, instead of using a commercial health insurance company. For these employers, hiring any employee is a risk, because one catastrophic health incident can consume the entire health care budget for the company. If a company knows about the candidate’s genetic profile, discrimination may occur.

•    Do not disclose information about your genetics in an interview or on an application. GINA is concerned primarily with protecting individuals from discrimination because an employer thinks they are at increased risk of acquiring a condition in the future. It does not protect you from discrimination because you had a condition (such as cancer), even if the condition has a genetic basis. (The ADA, however, may protect you if your health situation meets the legal definition of “disability.”)

•    You may be asked to take a medical examination or fitness-for-duty examination after being offered a job, and the offer may be conditional on “passing” the exam. However, it is a violation of GINA to request or require you to provide genetic information, including family medical history, during a medical examination related to employment.

Special Consideration for Veterans in Hiring

Certain companies with federal government contracts or subcontracts are required to provide affirmative action to employ disabled veterans, recently separated veterans (within three years of discharge or release from active duty), specific types of veterans (those who served during a war or in a campaign or expedition for which a campaign badge was awarded), and Armed Forces service medal veterans (veterans who, while on active duty, participated in a U.S. military operation for which an Armed Forces service medal was awarded). For more information, visit http://www.dol.gov/vets/.

Fair Labor Standards Act

While it doesn’t specifically relate to hiring, the Fair Labor Standards Act is relevant for jobseekers because it specifies the federal minimum wage, which is $7.25 per hour as of July 24, 2009. You are also entitled to 1.5 times your regular pay for all hours worked over 40 hours in a workweek, if you work for a covered entity.

The Fair Labor Standards Act also specifies child labor requirements. Specifically, an employee must be at least 16 years old to work in most non-farm jobs and at least 18 to work in non-farm jobs declared “hazardous” by the U.S. Secretary of Labor. Teenagers ages 14 and 15 may work outside school hours in various non-manufacturing, non-mining, and non-hazardous jobs, providing they work no more than 3 hours on a school day or 18 hours in a school week, or 8 hours on a non-school day or 40 hours in a non-school week. Fourteen and fifteen-year-olds may not begin work before 7 a.m. or after 7 p.m., except from June 1 through Labor Day, when evening hours are extended to 9 p.m.

Employees under age 20 may be paid $4.25 per hour during their first 90 consecutive calendar days of employment with an employer. Also, certain full-time students, student learners, apprentices, and workers with disabilities may be paid less than the minimum wage under special certificates issued by the Department of Labor.

Also, the act specifies that employees who work in “tip professions” must receive a cash wage of at least $2.13 per hour if the employer claims a tip credit against the minimum wage obligation. If an employee’s tips — combined with the employer’s cash wage of at least $2.13 per hour — do not equal the minimum hourly wage of $7.25 per hour, the employer must make up the difference.

Note: Certain occupations and types of businesses are exempt from the minimum wage and/or overtime pay provisions. Some state laws also provide greater employee protections, and employers must comply with both state and federal law.

Additional Resources

For more information about wage and hour laws, visit www.wagehour.dol.gov.

More information about employment discrimination in hiring can be found on the U.S. Equal Employment Opportunity Commission (EEOC) website, www.eeoc.gov.

Questions?

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Disclaimer and legal notice: The information presented herein represents the view of the author as of the date of publication. This report is for informational purposes only. While every attempt has been made to verify the information provided in this report, the author does not assume any responsibility for errors, inaccuracies, or omissions. Any slights of people or organizations are unintentional. If advice concerning legal or related matters is needed, the services of a fully qualified professional should be sought. This report is not intended for use as a source of legal or accounting advice.
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About Jessica Smith

Jessica Smith is a resume writer and small business owner of Resume Butterfly, focused on transforming careers and resume makeovers. Before Resume Butterfly, Jessica was the Director of Career Services at a local college.
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