To continue reading please register or login to your OHW+ account.
United States employment law tries to protect from discrimination particular categories of vulnerable employee. Kenneth J Rose and Scott Wenner of US law firm Littler Mendelson examine the key differences from the UK and issues relating to recruitment Stateside
British companies doing business in the United States are subject to both the US federal labour and employment laws, and employment laws of the states in which their US operations are located.
These laws apply to formation of the employment relationship and to the employment itself. No legal requirement exists under federal or state laws for a written employment contract.
Nevertheless, British companies with US-based employees must be aware that the recruitment and hiring process is highly regulated at federal and state levels. US hiring practices must be non-discriminatory, may not improperly impinge on applicant privacy, and must otherwise satisfy many federal and State laws.
California and New York, which contain the most important financial and business centres in the United States, have state laws, and even municipal codes, which augment and complicate federal strictures on hiring.
The federal, California and New York equal employment opportunity laws require the selection of prospective employees to be non-discriminatory. Under federal and Californian laws, employers must consider applicants for employment without regard to race, colour, gender, sexual orientation, religion, creed, national origin, ancestry, age (over 40), disability, medical condition or marital status. New York law also protects applicants under 40 from age-based hiring decisions.
To be non-discriminatory, a hiring policy must use recruitment and selection procedures that neither intentionally nor inadvertently exclude protected group members.
Recruitment through employment agencies is equally regulated: it is unlawful for an employment agency to fail to refer for employment any individual based on any protected classification, nor may an employment agency honour its customer’s request to exclude minorities from referral.
Pre-Employment Inquiries of Applicants
Interviews should be job-related, objective and standardised to avoid violating discrimination or privacy laws. Applications may not include questions that would be unlawful if asked at an interview.
Pre-Employment Screening (Medical and Psychological)
Employers can require a pre
