Previous Article Next Article Providing protection with legislationOn 23 May 2000 in Personnel Today 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 StatesideBritish 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 ApplicantsInterviews 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-employment medical examination, or inquire about an applicant’s health, only after offering employment. Employers may condition an offer on the results of medical examinations provided:all applicants offered similar positions are subjected to the same examination or inquiries; any medical criteria used to disqualify applicants are job-related and consistent with business necessity; any applicant disqualified by a medical examination has an opportunity to submit an independent medical evaluation before the employer’s final determination is made; and the examination results are maintained confidentially and separately from the applicant’s personnel file.The employer may withdraw a job offer based on the results of a medical examination if they show the applicant cannot satisfy the employer’s job-related physical/psychological criteria with or without reasonable accommodation.An employer’s right to screen applicants for illegal drug use is less clear. While there is no federal, California or New York law that directly prohibits employers from requiring applicant drug screening, court decisions applying constitutional and common law notions of privacy are inconsistent, and applicant screening may not always be permissible.The California Constitution elevates privacy to a right that restricts employer action; New York recognises no such sweeping right to privacy in the workplace.Applicant Background Information Employers may conduct pre-employment background investigations subject to compliance with rigorous statutory provisions.Federal, California and New York statutes regulate an employer’s gathering and use of information concerning an applicant’s financial history, reputation and character.These laws require employers to provide notice before investigating, and demand compliance with other procedures before employment is denied based on the investigative findings.Federal, California and New York laws prohibit mandatory polygraph exams as a condition of employment, each of these jurisdictions also prohibit employers from asking an applicant to disclose arrest information where no conviction resulted.Employment Contracts US jurisdictions do not require written employment contracts or that the employment relationship be of any fixed duration.While unionised worksites generally have collectively-bargained agreements applicable to new hires, non-unionised employers rarely have written employment contracts other than with executives, though most companies require new employees to sign confidentiality agreements committing them to protect the company’s proprietary information. If a written contract is employed, the form and content of the agreement can be freely negotiated between the company and the employee. However, certain statutory protections such as minimum wage and overtime laws and family and medical leave laws protect eligible employees regardless of whether they are included in any written contract. Creating an “At Will” Employment RelationshipPrivate sector employment in the United States is terminable “at will” in the absence of an express or implied agreement to the contrary. “At will” employment permits the employer to dismiss the employee without “cause” or notice, provided the termination does not violate any statute, such as the anti-discrimination laws and does not otherwise offend public policy. An “at-will” senior employee may have no greater job security than a newly-hired worker. Employers in California and New York may maintain “at will” employment by taking precautions during the recruitment and selection process to avoid any implication that “cause” must exist or notice must be given before an employee may be discharged. Also, employment applications, applicant interviews, offer (appointment) letters and employment contracts given new hires should unmistakably inform applicants/new hires that employment is on an “at will” basis. “At will” disclaimer language used consistently and prominently throughout the hiring process may later preclude claims for wrongful termination.Immigration Law in the Hiring ProcessBritish companies seeking to employ non-US nationals at their US operations cannot employ anyone who has not obtained a work visa. Visa categories most frequently used for business personnel are the Temporary Business Visitor (B-1), Treaty Trader or Investor (E-1 or E-2), Temporary Worker or Trainee (H-1B, H-2, or H-3) and Intracompany Transfer (L-1).US immigration law obligates employers to inspect documents that permit them to verify the identity and authorisation to work in the US of every new hire, without discriminating against anyone on the basis of citizenship, as distinct from eligibility to work. Verification records must be maintained on each new employee. Regulations specify the kinds of documents employers may accept as proof of identity and work eligibility.Web sitesFurther information about U.S., California and New York laws affecting employment is available at the following web sites: our law firm’s site – www.littler.comThe U.S. Department of Labour The U.S. Equal Employment Opportunity Commission The US Immigration and Naturalization Service The California Department of Industrial Relations The New York State Division of Human RightsThe Personnel Today guide to international employment law is edited by Clare Murray, partner in employment and partnership law at Fox Williams Comments are closed. Related posts:No related photos.
Hear more about the mission and impact of the Crimson Summer Academy from CSA Director Maxine Rodburg, a CSA mentor, and a student participant. When Jefferson Correia arrived at Syracuse University as a freshman, he sat in a large lecture hall with the school’s dean, along with hundreds of others in the incoming class. When they were asked what they hoped to pursue, several of his peers said finance “because their father was in investment banking,” or because they hoped one day to take over the family business, Correia recalled.“I am sitting there thinking, ‘My dad is a cook … what am I doing here?’ But then, at the same time, because I’d gone through the Crimson Summer Academy [CSA] … I knew I could succeed, because I already did it at CSA. So if I did it once, I could do it again.”Correia, who graduated from Syracuse in 2011, took part in an Askwith Forum at the Harvard Graduate School of Education on Tuesday along with five other alumni from CSA, an intense academic and college preparatory program founded by Harvard in 2003 to support high-achieving high school students from Boston and Cambridge.The initiative, whose curriculum is based on the theme of students as citizens, brings 30 of them to campus over three consecutive summers for classes, field trips, cultural activities, and discussions with Harvard professors. The program, which is funded by the President’s Office at Harvard University, includes a yearlong mentoring component with Harvard College students and CSA alumni. Students who successfully complete the program are awarded a $3,000 scholarship to use at the college or university of their choice.“The culture that has been created at the academy, it’s palpable,” said CSA Director Maxine Rodburg. “This incredibly positive community that supports each other, that lifts each other up, that reaches out — it’s really quite remarkable.”Each graduate had a story about that supportive community. One participant said his CSA experience helped him express himself more freely. Another turned to a CSA friend and mentor for support during a rough freshman year. Others said they were inspired by their challenging summer classes and returned to high school energized and a step ahead in math and writing. And all made long-lasting friendships, and went on to top colleges and universities.Bates College President Clayton Spencer, Harvard’s former vice president for policy who helped to design the College’s current financial aid program during her Harvard tenure, was a driving force behind CSA. During the discussion, Spencer explained how the initiative began as a national pipeline program envisioned by onetime Harvard President Lawrence H. Summers, but quickly morphed into a multiyear initiative with a residential component at the urging of Rodburg, who was director of the Faculty of Arts and Sciences’ Writing Center.“[Maxine said] ‘If you want to do something that really changes lives, this needs to be a local program. It needs to draw from Boston and Cambridge’s most challenging public schools, and [the students] need to come every summer after ninth grade.’“I knew we had a really powerful program from the beginning.”The numbers attest to its success. Ninety percent of CSA graduates have completed college or are on track to do so in four or five years. Another powerful proof of the initiative’s long-term impact comes from those who attended the academy, a closely connected group known as “Crimson scholars.”Gabrielle Farrell said her drive to excel in college and try new things has much do with the confidence she gained at CSA. At one point, Farrell waved to Harvard President Drew Faust, a fellow Bryn Mawr alumna who was seated in the front row of the lecture hall.“Without the CSA, I would never have grasped onto the concept that writing is transformative, and it’s constantly changing. … I remember constantly running back to Maxine for guidance with that, and it all has to do with confidence, and CSA instills that confidence in us.”Andria Bhagwandeen, now a junior at Bates, had a transformative moment during her early days with the CSA program. She remembered her high school English teacher calling her “one of the best writers” she had seen. But when Bhagwandeen arrived at CSA, she failed her first essay assignment three times.“It was at that moment I realized how important CSA became to me in … shaping my academics. Quite honestly, I don’t know where I would have ended up if I didn’t come to CSA. It really paved a whole new way for me to go, and that’s what I’m really thankful for.”For Wesleyan University student Kwame Adams, traveling to see colleges with other CSA participants and meeting with students on various campuses helped him feel more comfortable with the college application process, and with applying to top-tier schools.“Being able to go to those places, eat in a dining hall and talk to a panel of students, and hear from professors … eased our fears and let us know, ‘You can do this. You can be here.’”The Crimson Academy is one of Harvard’s efforts to support students from modest economic backgrounds. In addition to a comprehensive financial aid package to support undergraduates, the Faculty of Arts and Sciences (FAS) recently announced the rollout of a new initiative, the Harvard College Connection, which is designed to bolster existing efforts to encourage low-income students to apply to Harvard and other selective colleges and universities.The new program will use social media, video, and other Web-based communications to connect with high school students. Harvard admissions officers already travel to more than 140 cities and towns each year — many in low-income areas — to meet with potential students, parents, and guidance counselors.There is a continuing need to reach those students, experts agree. Recent research conducted by the Harvard Kennedy School’s Christopher Avery and his Stanford collaborator Caroline M. Hoxby showed that high-achieving high school students from limited backgrounds aren’t generally applying to elite institutions, in part because they have little exposure to peers attending such schools, or they are unaware of the broad financial aid packages available.Avery, the Roy E. Larsen Professor of Public Policy and Management, is working with Harvard on the College Connection initiative, and is also involved with gathering feedback from CSA alumni about the summer program.The Crimson Summer Academy