Table of Contents
Table of Contents
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What Are Hiring Laws?
Hiring laws can sound daunting and scary, both because they can be complicated and involved and because of the potential legal, financial, and criminal consequences associated with them. This guide can help dispel some of that fear. Understanding hiring laws will empower you to add actionable and recognizable value to your organization. Don’t look at hiring laws as something to be afraid of or a chore to follow. Following hiring laws will help you and your organization make better, more inclusive, equitable, and ethical hiring decisions that will make your organization stronger.
Hiring laws define employee rights and prevent discrimination. Most employment in the United States is “at will,” which means that both an employer and employee can end an employment relationship at any time with or without cause. Even so, laws have been passed to further define the rights of employees.
Why Are Hiring Laws Important?
Much like the Bill of Rights, hiring laws define the basic rights of employees and determine the types of discrimination employers cannot permit.
- Legal consequences. One of the most important functions of HR is guiding the organization through the legal landscape of hiring laws. Breaking hiring laws can be costly, lead to lengthy and time-consuming court cases, damage employer brands, and have criminal implications.
- Balance. Employment laws mainly outline the rights of employees, but hiring laws also support businesses. Look at hiring laws as a balance between the rights of employees and the benefits to employers. In some cases, complying with hiring laws can cost organizations, but in other ways, organizations have a great benefit from hiring laws. Employees that feel valued and equal are more likely to stick around and do great work. That means hiring laws are not just pesky rules that cost money they also help businesses run effectively and make money.
- Far-reaching. Employment law spans every area of employment and workplace practices. Hiring laws on their own have a far-reaching scope of how to find, attract, hire and retain employees. Although most employment is “at will,” that does not mean you can do whatever you want.
Types of Hiring Laws
Most hiring laws define the rights of employees as well as the limits on employers’ choices and behavior. Let’s explore a few types of hiring laws:
Anti-discrimination laws are designed to protect employees’ rights to employment agreements. Anti-discrimination laws are constantly evolving, and as a rule of thumb, these laws will continue to become more aggressive in protecting individuals and groups. Therefore, pay special attention because these laws will likely become farther-reaching as our society further understands discrimination.
Anti-discrimination laws also impact an organization and pose risks because they have hefty legal consequences if violated.
There are two main categories of discrimination to understand:
Disparate treatment is intentional discrimination toward an individual. This may not necessarily be pervasive with far-reaching implications, but it is treatment or a process that adversely affects and discriminates against an individual in a way that violates their rights.
Disparate impact is a hiring process that, though potentially unintentional, has a discriminatory outcome against protected groups and classes. Disparate impact is important to understand because it can hold legal consequences even when your organization is not intentionally being discriminatory. Disparate impact requires frequent scrutiny of your hiring processes to ensure you are not unintentionally discriminating against a protected class or group.
Requiring applicants to include their address on a job application is an example of disparate impact. While it sounds reasonable to ensure employees can fulfill essential job duties and obligations by arriving at work on time each day, consider the unintentional consequences this may have. In cities or areas that are predominantly populated by a protected class, requiring applicants to include their address can lead to unconscious bias in hiring decisions that disparately impact protected groups and classes.
To learn more about the disparate impact you can research the landmark court case Griggs vs. Duke Power.
Even though discrimination has inherently negative connotations, not all discrimination is unethical or illegal. Here are a few examples:
There are laws in place to protect minors by preventing organizations from abusing the rights of children by forcing them into employment obligations.
Your organization is required to follow federal laws of employment authorization and is only allowed to employ individuals who are legally authorized to work in the United States.
Retaliation is technically a form of discrimination but is unique and needs to be understood individually. The Big Book of HR written by Barbara Mitchell and Cornelia Gamlem defines retaliation as, “when an employer takes an adverse action against a covered individual because he or she engaged in a protected activity.” Retaliation is further described as when an employer takes action against someone who is speaking out against or trying to prevent an employer from taking discriminatory action.
For more information on retaliation check out this article from the U.S. Equal Employment Opportunity Commission.
Equal Employment Opportunity
Although it’s not necessary to memorize the title of every hiring law, the Equal Employment Opportunity Commission (EEOC) is one you will want to know by name. The EEOC is the body that enforces discrimination laws and can file cases directly against an organization. The EEOC requires that you visibly post federal laws that prohibit hiring discrimination.
Hiring Laws HR Should Know
There are more employment laws than anyone could know off the top of their head (unless they enjoy being a human encyclopedia), but here are the basics every HR professional should know.
While it’s not as important to memorize the specific title of the law, the landmark court case that established the law, or the year it was passed (although that will help you in the PHR exam), it is important to understand what the law covers and how it affects employment.
Title VII, Civil Rights Act of 1964
This law defined discrimination on the basis of race, color, religion, national origin, or sex as unlawful. It applies to all employers with 15 or more employees. This law also prohibits retaliation and sexual harassment based on the same terms.
Civil Rights Act of 1991
Title VII was expanded in 1991 to include remedies and damages for discrimination.
The Equal Pay Act of 1963 (EPA)
The Equal Pay Act is part of the EEOC. This law aimed at abolishing sex-based wage disparity. The EPA prohibits employers from paying men and women differently if they are performing similar roles that require similar effort, responsibility, and skill.
The Lilly Ledbetter Fair Pay Act of 2009
This landmark legislation overturned a Supreme Court decision that placed strict time limits on wage-related complaints to be filed. In this legislation, each paycheck can be considered separate regardless of when the discrimination began.
The Pregnancy Discrimination Act of 1978 (PDA)
The PDA expands the score of Title VII to include pregnancy. It is unlawful to make hiring decisions on the basis of pregnancy or pregnancy-related conditions. This law requires employers to treat pregnancy as any short-term disability.
The Age Discrimination in Employment Act of 1967 (ADEA)
The ADEA also expands the coverage in Title VII to include those over the age of 40. It is unlawful to discriminate in hiring and employment decisions based upon being over 40 years old.
This title VII expansion is not as well known and consequently, people over age 40 still experience discrimination in hiring processes. Understanding this law will help you provide value as your organization adopts hiring processes that comply with the ADEA.
The Americans with Disabilities Act of 1990 (ADA)
The ADA requires an employer to provide reasonable accommodation for employees with filed disabilities. These types of accommodations assist an employee in performing essential job duties.
Employers are not required to provide any accommodation that would cause them undue hardship. Employers are not required to provide accommodation by lowering or eliminating the essential job duties of a role. Undue hardship is determined on a case-by-case basis. ADA applies to all employers with 15 or more employees.
The Americans with Disabilities Amendment Act of 2008 (ADAAA)
The ADAAA expands the scope and coverage of the ADA with definitions of disabilities. The ADAAA also overturned several supreme court decisions that made it difficult to define a disability and helped broaden the scope of what can be considered a disability.
For more information on the ADAAA, you can visit the US Department of Labor’s page.
The Fair Credit Reporting Act of 1970 (FCRA)
The FCRA protects the privacy of an employee’s background information. Employers sometimes lawfully obtain background information through commercial agencies on employees as part of a pre-employment screening process. This law outlines the actions and requirements employers are required to take. As part of this act, employers are required to give an employee notice when adverse action is taken based on the information within a consumer report.
For more information on FCRA compliance, you can check out the Consumer Financial Protection Bureau.
The Fair Labor Standards Act (FLSA)
This law established federal standards for minimum wage, overtime pay for exempt employees, record keeping requirements, and employment age regulations. These laws apply to both the private and public sectors.
For more information, check out this article from the US Department of Labor.
The Genetic Information Nondiscrimination Act of 2008 (GINA)
GINA states that it is unlawful to discriminate against someone based on their genetic information. This applies to all employment-based decisions including hiring and termination.
The Consumer Credit Protection Act of 1968 (CCPA)
The CCPA protects an employee from being terminated from an employer due to their wages being garnished for any singular debt.
The National Labor Relations Act (Wagner Act) of 1935
The NLRA was one of the first major federal employer-regulating laws in the United States. It prohibits employers from engaging in labor practices that violate employee rights, including the right to form and be represented by a union. The NLRA applies to both at-will employees and union labor employees.
How to Stay Up-To-Date on Hiring Laws
Hiring laws are not set in stone. While big changes don’t happen overnight, even small changes can impact the way you recruit so it is important to stay up to date and informed on both federal and state/local laws.
The Society for Human Resources Management
The Society for Human Resources Management (SHRM) is the world’s largest HR management organization and is based on subscription fees. It has over 250,000 members, all of whom have access to tremendous resources including updated hiring laws.
Local and State Bulletins
Many reputable sources, including the US Department of Labor and SHRM, post bulletins specifically designed to keep HR professionals up to date on hiring laws.
The World’s Largest HR Encyclopedia
If you are reading this article, you have already found a great way to stay up to date with hiring laws. We are constantly adding new articles to keep you sharp on everything HR, including hiring laws.
The HR community is vast and many HR professionals tirelessly share their collective wealth of knowledge with the rest of the HR community. We are in this together.
If your organization has legal counsel, you can partner with them. Your organization’s legal counsel is actively involved in keeping the organization compliant and safe. They will help you not only stay up to date with changing laws and trends but also help you design policy to remain compliant.
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Tyler empowers Talent Acquisition professionals, HR business leaders, and key stake holders to develop and execute talent management strategies. He is igniting the talent acquisition process through: team building, accurate time to fill forecasting, driving creative talent sourcing, and fine-tuning recruiting team effectiveness.