The 4 Key Employee Recruitment Laws You Need to Know

Abstract 

Federal, state, and legal laws protect job applicants as well as employees. These laws allow potential employees to take legal actions against potential employers if they are subjected to discrimination. This paper identifies and discusses employee recruitment laws and their impacts on job applicants and employeers. One such law is the Immigration Reform and Control Act, created to preserve employment opportunities for workers with legal documentation. The law stipulates that employers are responsible for ascertaining the immigration and work status of potential employees. The Americans with Disabilities Act (ADA) protects job applicants with physical and mental disabilities from discrimination. The Age Discrimination in Employment Act (ADEA) illegalizes ageism for persons aged above forty, including job applicants and employees. Lastly, the Pregnancy Discrimination Act protects pregnant women from discrimination. Job postings should not indicate preferences regarding age, sex, disability, and pregnancy. 

Keywords: discrimination, age, pregnancy, disability, pre-employment, screening, and immigration. 

Employee Recruitment Laws 

Before applicants become employees, they are protected by legal laws under state, federal, and local laws. Therefore, potential employees are protected from discrimination during the job application, candidate shortlisting and hiring process. Potential employees have a right to seek litigation if they are not hired for the desired position. The legal action can be based on various factors, such as the job advertisement process, the conduction of a background check, and subjection to pre-employment tests. Several statutes govern employment decisions and are uniformly applied throughout the US. This paper identifies and discusses employee recruitment laws and their impacts on pre-employment recruitment activities from applicants' and employers' perspectives. 

Immigration Reform and Control Act 

The Immigration Reform and Control Act requires employers to attest the immigration status of job applicants and employees. The act illegalizes recruiting and hiring illegal immigrants to preserve employment opportunities for applicants with legal documentation to work in the US. Therefore, human resource (HR) managers are tasked with ascertaining the eligibility of job applicants before entering the employee selection process. Consequently, recruitment forms prompt applicants to state whether they are legally able to work in the US. The Employment Eligibility Verification form is a reporting form used to determine a job applicant’s identity and legal work status. The act applies to permanent and temporary workers as well as subcontractors. Consequently, employers are liable for subcontractor’s decisions to hire undocumented workers (Freedman et al., 2018). Employer’s failure to comply with the act attracts significant fines and penalties. 

Employers sometimes violate the Immigration Reform and Control act by discriminately applying employee eligibility verification. They might discriminately apply employee eligibility verification for people of color or those with evident cultural, speech, language, or different aspects. Cocchiara et al. (2016) investigate the impact of applicant dialect on employment recruitment processes and outcomes. The employers’ perception of the best applicants and employees is subjective and might be discriminatory. HR managers use several applicant screening tools to facilitate the initial screening of job applicants. For example, the telephone prescreen interview is used to gauge whether applicants’ qualifications match the position and organization. HR managers prefer telephone interviews because they are cheaper than face-to-face interviews. However, telephone interviews increase the risk of engaging in illegal race-based discrimination since job applicants may exhibit racially specific verbal characteristics. Race and ethnicity can be sources of discrimination when the evaluator is aware of the applicant’s race. Such bias persists when race can be inferred from linguistic cues (Cocchiara et al., 2016). Therefore, race-recognizable dialects can prevent job applicants from proceeding in the job selection process. 

Americans with Disabilities Act 

The ADA ensures that employees and job applicants with disabilities are accorded with equal opportunities in the workplace. The act prohibits pre-employment medical inquiries and examinations. During the pre-employment process, employers should only seek or obtain information that pertains to the applicant’s qualification. Therefore, it is illegal for employers to make any pre-inquiries about the applicant’s disability status. If employers enquire about the applicant’s background, the applicant is legally mandated to file a claim alleging discrimination, which can be to elucidate the employer’s intent to discriminate. Moreover, it also prohibits employers from excluding qualified persons if they can perform the job’s essential functions unaided or with reasonable accommodation (Gostin, 2015). The ADA prohibits employers from asking questions about a person’s disability, the existence of previous medical conditions, and mental health problems. 

Employers have a right to administer tests that measure aptitude, intelligence, personality traits, and psychological profiles while searching for skilled employees whose personalities match those of existing employees. Personality testing offers employers hiring advantages due to the incremental validity for predicting job performance. However, personality tests can be problematic for job applicants since they are sometimes discriminatory towards people with disabilities. The application of personality tests as a pre-employment activity faces numerous challenges under the ADA on account of emerging evidence indicating that normative personality and personality disorders qualify as disabilities. As the scientific understanding of personality progresses, employers need to be more cautious when choosing personality measures to employ in the pre-employment process (Melson-Silimon et al., 2019). Therefore, employer’s utilization of personality tests is faulted for being discriminatory towards disabled people. 

Personality tests violate ADA regulations and adversely impact individuals with mental disabilities who the ADA protects. Melson-Silimon et al. (2019) asserted that modern personality tests are founded on the Five-Factor Model of Personality. Recent psychological studies demonstrate that there is a positive correlations between the five factors and several mental disabilities. Therefore, personality test products can screen out applicants with disabilities. Moreover, people with mental disabilities are underrepresented in the workplace. Consequently, when personality tests seek to identify and replicate the personality traits of a company’s top performance, they may perpetuate exclusion and inequality (Melson-Silimon et al., 2019). The ADA prohibits qualification tests and standards that screen out an individual based on disability unless the employer can prove job-relatedness. 

Age Discrimination in Employment Act 

The ADEA prohibits discrimination of job applicants and employees based on their age. The act protects people aged above 40. Moreover, any unreasonable employment policies and practices that adversely impact job applicants over 40 are illegal. Employers are also prohibited from asking job applicants’ or employees’ age and graduation dates. However, employers habitually use an applicant’s date of birth to perform a routine background check. Moreover, if the job employs a minimum age requirement, the employer is mandated to verify the applicant’s age (Hunter et al., 2019). The ADEA warrants the prosecution of employers who use the applicant’s age for unlawful purposes. Hiring decisions should be based on the applicants’ abilities and not their age. 

The ADEA has somewhat helped older workers and hurt employers. Older workers are protected from unfair dismissals. These workers content with ageism in the job application process. However, the fear of litigation has dissuaded employers from engaging older workers. Older workers are also adversely impacted by the ADEA due to the court's interpretation of the law. Recent decisions have erected a barrier for older job applicants after assertions that external job candidates cannot allege disparate impact based on the ADEA. Therefore, external job applicants cannot pursue litigation (Farmer, 2019). States also fail to enforce age discrimination statutes vigorously. 

The ADEA forced employers to comply to avoid age discrimination accusations. Employers should exclude age preferences, limitations, or specifications from job postings and advertisements. These postings should emphasize experience and not age or date of graduation. The job application process should not discriminate or indicate any intent of discrimination. Therefore, employers should not ask for the applicant’s age unless proven necessary (Farmer, 2019). Following these guidelines ensures employers are protected from litigation. 

Pregnancy Discrimination Act 

The Pregnancy Discrimination Act illegalizes the discrimination of pregnant women in job considerations. Therefore, women affected by a pregnancy, delivery, and subsequent medical conditions should be treated equally with non-pregnant job applicants. Women are protected from discriminatory testing when it comes to pre-employment tests. The administration of these tests should not propagate explicit or implicit discrimination. For instance, if job applicants are required to take drug tests, these tests should exclude screening for pregnancy which is only applicable for female applicants. Employers are also prohibited from placing job advertisements that exhibit a preference for or discourages applications from people based on sex and pregnancy (McCammon & Brockman, 2019). Female applicants are protected against pregnancy discrimination in all employment aspects, including hiring, termination, and promotions. The Pregnancy Discrimination Act significantly influenced the labor force participation rate of women. 

Human resource practitioners should be educated on the usage of online social networks in screening job applicants. Social networks provide recruiters and potential employers with additional information about job applicants’ after-work behavior. They provide future employers with more personal information than they are legally privy to, creating potential legal challenges due to privacy considerations. Pre-employment screening using social media offers employers numerous advantages. For example, it reduces hiring costs since potential employees with the right hiring attributes are considered. Consequently, the costs associated with retraining and rehiring are mitigated. Moreover, screening using social media sites prevents incompetent selection and the associated litigations. However, using information obtained from social media sites creates a risk of unfair inferences. Applicant’s considerations based on information obtained outside the application process present a risk of unfair inferences. Such information, such as age, disability, and pregnancy, should not be considered factual unless relevant and accurate (Hosain & Liu, 2019). Utilizing such information violates the Equal Employment Opportunity Act (EEOC) guidelines. 

Conclusion 

Employee recruitment laws prohibit some pre-employment activities that propagate age, pregnancy, and disability discrimination, among others. Job applicants enjoy extensive protections applied during the employee recruitment process. They have a right to take legal action if anti-discrimination guidelines are violated. The Immigration Reform and Control Act requires employers to ascertain the immigration and work status of job applicants. Other acts prohibit discrimination based on age, gender, and pregnancy. HR managers should receive extensive training on these laws to ensure compliance and reduce the risk of litigation. Compliance with anti-discrimination regulations enhances the labor force participation of discriminated groups. 

References 

Cocchiara, F. K., Bell, M. P., & Casper, W. J. (2016). Sounding “different”: The role of sociolinguistic cues in evaluating job candidates.  Human Resource Management ,  55 (3), 463-477. https://doi.org/10.1002/hrm.21675 

Farmer, K. (2019). Outsiders need not apply: Myopic appellate interpretations of the age discrimination in employment act insulate prospective employers from disparate impact liability.  Southern Law Journal ,  29 (2), 255-280. 

Freedman, M., Owens, E., & Bohn, S. (2018). Immigration, employment opportunities, and criminal behavior.  American Economic Journal: Economic Policy ,  10 (2), 117-51. 10.1257/pol.20150165 

Gostin, L. O. (2015). The Americans with Disabilities Act at 25: The highest expression of American values.  Jama ,  313 (22), 2231-2235. 10.1001/jama.2015.6405 

Hosain, S., & Liu, P. (2019). Conducting pre-employment background checks through social networking sites: The new role of HR professionals.  Journal of Economics, Management and Informatics ,  10 (2), 111-123. 

Hunter, R. J., Shannon, J. H., & Amoroso, H. J. (2019). Employment discrimination based on age: Part II: Applying the ADEA in employment scenarios: Discrimination, idle chatter, or something else?  Journal of Public Administration and Governance ,  9 (1), 1-17. 

McCammon, H. J., & Brockman, A. J. (2019). Feminist institutional activists: Venue shifting, strategic adaptation, and winning The Pregnancy Discrimination Act. Sociological Forum 34 (1), 5-26. https://doi.org/10.1111/socf.12478 

Melson-Silimon, A., Harris, A. M., Shoenfelt, E. L., Miller, J. D., & Carter, N. T. (2019). Personality testing and the Americans with Disabilities Act: Cause for concern as normal and abnormal personality models are integrated.  Industrial and Organizational Psychology ,  12 (2), 119-132. 10.1017/iop.2018.156