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Legal Issues in Employment & Hiring


The Riley Guide: Before You Search or Handling a Job Loss

The U.S. – and many other countries – have laws designed to protect your rights before, during, and after an interview; along with even more laws governing your rights as an employee. There are also laws governing what a potential employer can ask of you as a candidate for hire. So before you go to that first interview, do a little research and enter the process with your eyes open. The better you know your rights, the more effectively you can prevent employers from discriminating against you – or report them if they do. For more info on legal issues related to employment, check out The Riley Guide's tips on NonCompete / NonDisclosure Agreements, Executive Severance, and Improper Interview Questions. And for legal tips related to the hiring process, read on.

Know Your Rights as a Job Seeker or Employee

As you may already know, the federal government prohibits any employer – whether they hire you or not – from discriminating against you on the basis of race, gender, nationality, religion, age, disability, or any of a long list of other factors. This is all covered under Title VII of the Civil Rights Act of 1964, which protects you from being denied employment, benefits, pay or training due to any of these factors, and also defends you from workplace harassment.

If you feel an employer is discriminating against you, the more important piece of advice is document, document, document. Depending on the nature of your case, some law firms may be willing to represent you for a cut of the settlement (i.e., no up-front fees) – but as this article (PDF) explains, they're going to want an extensive paper trail, in the form of your personnel file, your employment contract, a timeline of your progress (or lack thereof) at the company, detailed records of specific incidents of discrimination, and so on. The more legwork you can do for them in advance, the more likely they'll be to take a serious look at your case – and possibly help you get compensation.

If you feel an employer is discriminating against you, start documenting it in detail right now…

For more tips and details on how to fight back against a discriminatory employer – and/or how to find a lawyer to represent you – check out FindLaw.com's extensive library of articles on employment law and human resources. These articles can tell you whether the employer is legally at fault, and what action you can take against them. MyPersonnelFile.com also includes a long list of articles, and will even put together an "Employee Rights Kit" of official discrimination documentation forms for you, for a small fee. And WorkplaceFairness.org can connect you with lawyers, journalists and other public advocates who can help draw attention to your case.

Pre-Employment Testing

Lots of employers use pre-employment tests to screen applicants before making an offer. Some of these tests may focus on your job skills, while others may investigate your personality or your knowledge of the field. There's no law prohibiting employers from screening applicants on a test basis, provided that the tests aren't designed to filter out people based on race, age or any other illegal discriminatory factor.

Intelligence tests will consist of problem-solving; personality tests will evaluate your responses to various challenging workplace situations; and emotional intelligence tests – which are becoming increasingly widespread – will test your awareness of your own and others' emotional states. Tests that check your knowledge of a specific field are common in industries where you'll have to hit the ground running, like finance or food service. If an employer calls you back for a second interview, it's acceptable for you to ask if you'll be taking any tests as part of the process – as long as you're already in the door as a serious candidate, you can usually get a straight answer.

Before you show up to take a test, you may want to practice with some online examples…

Before you show up to take a test, you may want to practice with some of the many sample tests available online. Although these samples may not prepare you for the exact type of test the employer will use – and many employers don't reveal this information beforehand – they'll still prepare you for the general types of questions asked on each test, and help get you in the right frame of mind to present yourself as an ideal candidate on them. Put some real thought into your answers, and you'll be much more likely to shine.


Polygraphs are a form of supposed lie-detector test that records physical cues like blood pressure, pulse, respiration, and skin conductivity while the subject answers a series of questions. Advocates of polygraph tests claim that heightened physical responses to certain questions can help polygraph operators detect when a subject is lying – but the truth is that there's extremely little (if any) scientific evidence to support this claim. The official position of the U.S. National Research Council – and of many other scientific organizations, such as the American Psychological Association – is that there's no evidence that polygraphs work as advertised; and legal precedents since the 1990s have made it increasingly difficult for polygraph results to be accepted as evidence in courts of law.

The EPPA prevents commercial employers from screening applicants with polygraph tests…

Despite all this, some employers continue to use polygraph testing on their employees – despite the fact that the Employee Polygraph Protection Act of 1988 (EPPA) prevents any commercial employer from requiring this. However, the law does allow employers to "request" a polygraph examination from employees under certain conditions – such as in case of suspected embezzlement or other wrongdoing. Even in a "request" situation, though, the EPPA lays out extensive and detailed guidelines for polygraph testing. If an employer asks you to take one as part of an employee investigation, read the EPPA guidelines and know your rights.

Credit Reports & Background Checks

Credit checks are less customary than other forms of testing, but they do sometimes happen. Please note that no legitimate employer will "require" you to pay a free to have your own credit checked – this is a common scam. A legitimate company will simply ask for your name, date of birth and social security number, and will send this information to an agency that checks your credit but doesn't reveal your full credit report. And the truth is, there's no real reason for an employer to check your credit at all unless the position involves handling or managing large amounts of money.

It's not legal for employers in some states to base employment decisions on credit checks…

As a matter of fact, it's not even legal for employers in some states to base employment decisions on credit checks. This page lists recent state legislation relating to the use of credit information in employment, along with a list of states whose laws restrict use of this information in the hiring process. As of this writing, seven states limit employers' use of credit information in employment: California, Connecticut, Hawaii, Illinois, Maryland, Oregon and Washington. The list is updated annually, so when you look at this list make sure you are looking at the most current version.

A criminal record won't prevent you from working at all companies – and in fact, a growing number of employers are actively seeking out rehabilitated ex-convicts to employ – but it's in your long-term best interest to be honest about your felony history in the hiring process. If an employer hires you and then finds out you've lied about being a felon (some employers conduct this check late in the hiring process), you're likely to be fired, and you may also be subject to legal action. The good news is that these checks mainly pertain to felonies – many employers don't care about misdemeanors, arrests without conviction, civil suits and so on; and your state's laws may prevent employers from even seeing these types of information in your record.

Talking about Disabilities

Employers in the U.S. aren't legally allowed discriminate against you for having a disability, although they may, in certain cases, be allowed to base their hiring decisions on the results of tests that your disability prevents you from passing. But once you're hired, federal law also requires employers to make accommodations for your disability – provided, of course, that you tell them about it. Though you may be concerned that your disability will introduce some subtle bias into the hiring process, it's in your best interest to be up-front about it once that process seems to be moving along.

Employers are prohibited from asking about disabilities at certain points in the hiring process…

Early-on in the process, though, federal law protects you from having to disclose or permit access to information about your disability. The EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) of 2000 provides specific guidance on how and when employers can make disability-related inquiries or require medical examinations of employees. Employers are prohibited from asking about disabilities – or investigating them – prior to making an offer of employment, and they're also prohibited from conducting disability-related investigations on you after you've already been hired. In other words, the only range of time when it's legal for them to investigate your disability is after they've made an offer but before you've started work.

Helpful links

Employment Law & Human Resources — Well-organized articles on workplace discrimination, including how to document it and seek compensation for it.

Employment Tests — All kinds of info on various kinds of tests, along with links to online sample tests.

Employment Background Checks: A Jobseeker's Guide — Detailed info on how and why employers do background checks, as well as what your rights are and how to protect them.

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