The process of finding and landing a new job can be stressful and difficult. After weathering a storm of rejections during the application phase, applicants then find themselves thrust into the spotlight during the interview process. With the weight of a future career on their shoulders, some applicants may forget their rights. Others may never have known them in the first place.
In this guide, AAL will endeavor to explain some of the rules that employers can impose on potential applicants, as well as some of the things that they can’t. Additionally, this guide will also point out some of the rights that applicants have as future employees.
In general, a private company can be as picky as they want when choosing which applications to accept or which interviewees to hire. A law firm is allowed to only hire interns from a particular law school, a small business is allowed to only hire locals, and a large corporation can decide to exclusively hire applicants who show up to the interview in a blue polo shirt. There are, however, some notable exceptions.
Employers are not allowed to be discriminatory. For example, if an employer does not hire people with an accent, that could be considered national origin discrimination. A wide variety of federal laws define what qualifies as illegal discrimination including the Americans With Disabilities Act, the Age Discrimination in Employment Act, and Title VII of the Civil Rights Act of 1964.
During the application or interview process, an applicant will have to answer a number of questions. Some, like asking the address or phone number of an applicant, are simply used to ensure that the applicant can be contacted or lives close enough to the workplace to reasonably commute. Other questions, such as those related to work history, education, or personal references, are to determine the qualifications of the applicant.
Unfortunately, some interviewers may ask questions that are illegal. Illegal questions are questions that the interviewer is not allowed to ask due to it being either unnecessarily prejudicial, protected information, or irrelevant to the hiring process. Some protected questions may include asking about the applicants:
When asked these questions, an applicant may politely explain that the question is beyond the legal scope of the interview and refuse to answer.
In the digital age, a potential employer can collect a truly shocking amount of information about a potential applicant. Before making a hiring decision, employers can investigate a number of avenues to determine whether the applicant has been involved in any behaviors that the employer may find disagreeable.
The ways that most applicants understand that employers will scrutinize them are through drug testing, requests for proof of citizenship, and a general criminal background check. With an increasing digital footprint, some people may also consider that their employer will weigh searching through their social media accounts as well.
Other ways that an employer may seek to understand an applicant’s habits and character include examining credit reports, court records, character references, driving records, property ownership records, state licensing records, or sex offender lists. While these practices may feel invasive, as long as the information is publicly available a company is generally allowed to find it and use it in the hiring decision process.
Depending on the state that an applicant lives in, an employer’s background check may be more or less comprehensive. In more protective states, some public records may even be sealed to potential employers.
Some records, such as arrests or criminal convictions, may be able to be sealed depending on the job. Law enforcement or childcare employers may be able to access these records, while a culinary or accounting employer may require applicant consent or be denied entirely. Educational records like transcripts are usually obtainable by all employers as long as the applicant consents.
Some records, such as military service records or medical records, are always considered confidential and may not be accessed. If an employer needs to know about an applicant’s physical ability, they can request a physical examination but further medical information is not required to be turned over with that physical.
Finally, some records are public but are not allowed to be a factor in making a hiring decision. Bankruptcy records and worker’s compensation are the two most common kinds of public records that are publicly available, but may not influence a hiring decision. On occasion, worker’s compensation records may be allowed to be referenced if it is found to be relevant to the performance of specific job-related duties.
In all cases where an employer requests sealed information from an applicant, the applicant may refuse to provide it, but the employer may make decisions based on that refusal.
The hiring process is a two-way street. While applicants are eagerly seeking employment with all the benefits that it affords, employers are hiring because of a deficiency in their company that they need to address. In order to fill that position, employers may offer some incentives to lure in higher-quality applicants.
Telling applicants that they will be given a certain pay rate, benefits, or job security, may give rise to an implied contract. An implied contract is a form of a legal obligation that is formed despite not writing a formal contract. Examples of promises that may give rise to an implied contract include guaranteeing certain pay, benefits, job security, or other incentives to applicants.
If an applicant accepts the job based on the assumptions of an implied contract that are then not fulfilled, they may be able to pursue legal action against the employer who made those unkept promises. To prevent the confusion of an implied contract, applicants should always get their job offer in writing including any and all promises of salary, job security, and benefits.
If an applicant believes they have suffered discrimination, even if they have not been hired, they can file a complaint with the Equal Employment Opportunity Commission (EEOC). The EEOC handles all discrimination complaints from prospective, current, and former employees.
The EEOC is part of the Department of Labor and exists to address issues of sexual harassment, racism, and any other discriminatory practices that are based on an employee’s:
If an EEOC investigation finds evidence of discrimination to justify the complaint, the commission can offer mediation services, or may even file a discrimination lawsuit on behalf of the employee.
If you have suffered illegal discrimination during the hiring process, whether it is an out-of-hand rejection of your application or an unfair dismissal during the interview process, you may be able to file a lawsuit in order to seek justice for the time and energy wasted. The best way to accomplish that goal is with an Employment Law attorney.
An experienced Employment Law attorney can zealously advocate on your behalf in order to get you the best possible outcome for your case. Using their legal expertise, trial tactics, and expert witnesses, your Employment Law attorney will be able to gather evidence of your mistreatment, whether it’s unfair interview questions, a pattern of discriminatory rejections, or other proof of impropriety, and present that information in the most compelling way for your case.
AAL has a number of experienced and dedicated Employment Law attorneys who can help you seek the justice that you deserve.
*Disclaimer: Attorney At Law does not represent all lawyers in all states. There may be differences of opinion. It’s always advisable to consult with an attorney when in a legal situation.
