Flagging Applications: Employer Rights And Legal Boundaries

When it comes to job applications, employers must tread carefully to ensure they are complying with the law. While there is no federal law prohibiting drug testing, some states have imposed restrictions on this practice. Employers must also be mindful of the questions they include in their applications and interviews, avoiding topics such as age, race, religion, and national origin. It is illegal for employers to discriminate against applicants based on these factors, as well as their gender, sexual orientation, disability, or genetic information. This includes making reasonable accommodations for applicants with disabilities and avoiding policies that disproportionately impact certain groups. Additionally, employers must complete immigration forms and avoid asking about arrest records unless the job is security-sensitive. While requesting a photo with a job application may be legal, it could be a red flag for potential discrimination.

Discrimination based on race, colour, religion, sex, national origin, age, disability or genetic information is illegal

For example, an employer may violate federal law by requiring specific work authorization documents, such as a green card, or rejecting such documents from applicants of certain national origins. Similarly, it is illegal for an employer to refuse to give employment applications to people of a certain race or base hiring decisions on stereotypes and assumptions about a person's race, colour, religion, sex, national origin, age, disability or genetic information. An employer's reliance on word-of-mouth recruitment that results in a disproportionately homogenous workforce may also violate the law.

The law requires that employers provide reasonable accommodations to employees or job applicants with disabilities, unless doing so causes significant difficulty or expense. Reasonable accommodations may include providing a ramp for a wheelchair user or an interpreter for a deaf employee or applicant.

If an employee or job applicant believes they have been subjected to discrimination on any of the aforementioned bases, they may file a charge directly with the relevant authority, such as the Personnel Appeals Board's Office of General Counsel or the GAO's Office of Opportunity and Inclusiveness. Before filing a formal complaint, the individual must first contact a counsellor within 45 calendar days of the alleged discriminatory action. The counsellor will then conduct an informal counselling session within 30 days of the initial contact, unless the individual elects to mediate the dispute or agrees to an extension.

Employers must make reasonable accommodations for employees' religious practices

In the United States, the Equal Employment Opportunity Commission (EEOC) enforces laws that prohibit employers from discriminating against job applicants or employees based on their race, colour, religion, sex, national origin, age, disability, or genetic information. These laws require employers to make reasonable accommodations for the religious practices of their employees, unless doing so would cause significant difficulty or expense for the employer.

Reasonable accommodations might include flexible arrival and departure times, floating or optional holidays, flexible work breaks, staggered work hours, and other adjustments to enable employees to observe their religious practices. Employers must also consider reasonable accommodation requests from employees with sincerely held religious objections to vaccinations.

However, an employer may refuse to accommodate an employee's religious beliefs or practices if doing so would impose an undue hardship, or more than a minimal burden on the operation of the business. This could include situations where the accommodation is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their fair share of potentially hazardous or burdensome work.

Employers must provide reasonable accommodations for employees or applicants with disabilities

In the United States, the Equal Employment Opportunity Commission (EEOC) enforces laws that prohibit employers from discriminating against applicants or employees based on race, colour, religion, sex, national origin, age, disability, or genetic information. These laws also apply to neutral employment policies and practices that disproportionately negatively affect specific groups.

Under the Americans with Disabilities Act (ADA), employers must provide reasonable accommodations to employees or applicants with disabilities. Reasonable accommodation refers to any modification or adjustment to a job, the work environment, or the usual hiring processes that enable individuals with disabilities to have an equal opportunity to perform their jobs and enjoy the benefits and privileges of employment. This may include providing a ramp for a wheelchair user or a reader/interpreter for a blind or deaf employee or applicant.

Employers must also make their online application processes accessible or provide alternative means for people with disabilities to apply for jobs, unless this causes undue hardship. They cannot ask disability-related questions before offering employment and must ensure that any pre-employment tests are necessary and related to the job.

Additionally, employers must consider alternative ways to enable employees with disabilities to perform the essential functions of their jobs. For example, providing alternative transportation for a social worker who cannot drive due to vertigo, as the essential function is completing home visits rather than driving.

If an employer rejects an applicant after asking disability-related questions or requiring a medical examination, the EEOC will scrutinize whether the rejection was based on the results of these inquiries. The employer must demonstrate that the rejection is job-related, consistent with business necessity, or due to safety reasons, where the individual poses a "direct threat" that cannot be reduced through reasonable accommodation.

Employers must complete an Immigration and Naturalization Form I-9 for each new employee

In the United States, employers must complete an Immigration and Naturalization Form I-9 for each new employee to verify their employment eligibility. This form is used to attest to an employee's employment authorization and must be completed within three days of the employee starting work. Employees must complete Section 1 of the form when they commence employment, and they must present their employer with acceptable documents as evidence of their identity and employment authorization. These documents can include a passport, driver's license, or social security card, and the employer must examine them to ensure they are genuine. Employers must then record this information on the employee's Form I-9 and retain the form for three years after the date of hire or one year after employment is terminated, whichever is later.

It is important to note that employers cannot refuse to hire a candidate because their Form I-9 reveals that they are a non-citizen, such as a permanent resident or refugee. This is to prevent discrimination based on national origin or citizenship status. Employers must enforce I-9 compliance uniformly and cannot require some employees to complete it before being hired while allowing others to complete it after starting employment. Additionally, employers must not assume that an employee is unauthorized to work just because they could not provide proof of employment authorization before their start date.

The Immigration Reform and Control Act, which introduced the requirement for Form I-9, includes anti-discrimination provisions. Under this Act, U.S. citizens, permanent residents, temporary residents, asylees, or refugees who are legally allowed to work in the U.S. are protected from discrimination based on national origin or citizenship status. Employers must not request more or different documents than are required to verify employment eligibility and must accept any valid document specified in the I-9 form as long as they appear genuine.

Furthermore, federal law prohibits employers from discriminating against applicants or employees based on race, color, religion, sex (including transgender status, sexual orientation, and pregnancy), national origin, age (40 or older), disability, or genetic information. Employers must also provide reasonable accommodations to employees or job applicants with disabilities, unless doing so causes significant difficulty or expense.

Questions about an applicant's conviction record are improper unless related to the position

In the United States, the Equal Employment Opportunity Commission (EEOC) enforces laws that prohibit employers from discriminating against applicants or employees based on their race, colour, religion, sex (including transgender status, sexual orientation, and pregnancy), national origin, age (40 or older), disability, or genetic information. These laws also apply to questions about an applicant's conviction record.

While there is no federal law prohibiting employers from asking about criminal history, the EEOC recommends that employers refrain from asking about convictions on job applications. If employers choose to inquire about criminal records, the EEOC advises that these inquiries should be limited to convictions that would exclude an applicant from performing the job-related duties for the position in question and be consistent with business necessity. For example, an employer may inquire about an applicant's conviction for operating while impaired (OWI) if they are applying for a position as a driver, as the conviction relates to the job duties.

Many states have also passed laws, commonly known as "ban the box" laws, that restrict employers from asking about criminal records on employment applications or early in the screening process. Some state laws may require that such questions only be asked after an offer of employment has been made. Therefore, employers should be aware of any state or local laws that may impact their ability to inquire about an applicant's criminal history.

If an applicant has been denied a job based on a previous criminal conviction, they can look up their state's laws to determine if the employer acted within the law. If the state has "banned the box" or prohibits employers from considering criminal records in the hiring process, the applicant may have a legal claim against the employer. In such cases, it is advisable to consult an employment lawyer to discuss legal options.

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