Job applicants in Pennsylvania and New Jersey enjoy certain rights before they are hired. Employers are prohibited from engaging in unlawful discrimination based on an applicant’s protected characteristics during the hiring process. Local and state laws may provide additional protection to job applicants. Employers are required to abide by state and federal anti-discrimination laws throughout the recruitment and hiring process, including advertising, interviewing, and selecting candidates. The attorneys at Swartz Swidler can help you to understand your rights if a prospective employer has unlawfully discriminated against you.
Questions during interviews
Employers should not ask questions during interviews about the protected characteristics of job applicants, including their sexual orientation, race, gender, national origin, disability status, age, and others. Some of the types of questions that employers should not ask during job interviews include the following:
- Whether applicants intend to have children or already have children
- Whether the applicants are married
- What the applicants’ races, religions, or sexual preferences are
- How old the applicants are beyond asking if they are older than age 18
- Whether the applicants are disabled
- What the citizenship statuses of the applicants are
- Whether the applicants use alcohol or drugs
If an applicant asks questions about one of the previously listed items, the employer can talk about the topic as needed to provide an answer.
The hiring process
When an employer wants to hire a new worker, the employer must take several steps before the hired worker can begin working. Some of the things that an employer must do include the following:
- Secure a federal employment identification number from the Internal Revenue Service
- Register with the state to pay unemployment compensation taxes
- Establish a tax withholding system
- Prepare a plan to prevent illnesses and injuries for the Occupational Safety and Health Administration
- Post notices that are required by the U.S. Department of Labor
- Help employees sign up for any benefits
- Report their federal unemployment taxes to the IRS
Employers that make false promises to prospective employees may be liable for breaching an implied contract.
Improper hiring criteria
Employers are prohibited from considering several factors when they make hiring decisions. Under local, state, and federal laws, employers cannot make job decisions based on the protected characteristics of the applicants.
Employers also cannot refuse to hire applicants because they have received workers’ compensation benefits from other employers. Employers must also comply with restrictions on background checks and the extent to which they can rely on criminal records in making hiring decisions.
Employers that intentionally make misrepresentations to an applicant to convince him or her to accept a position may be liable. If an employee takes action based on intentional misrepresentations, the employer may be liable to pay damages.
For example, if you are recruited for a position and are promised a multi-year contract and a salary of $125,000 per year, your employer must follow through on the promises that have been made to you. If you move to Philadelphia for the promised position and are told once you start your new job that your salary will only be $85,000 per year, your employer may be liable to pay damages.
You may also have grounds to file a wrongful termination claim against your employer if you were told that your employment is guaranteed for a certain period but is terminated early. Similarly, you may have grounds to file a breach of contract claim if you were fired during a probationary period when you were told that you couldn’t be fired during that time.
Filing claims against a previous employer
Some applicants who are rejected from new jobs may have claims against their previous employers if their employers prevent them from securing new positions. Employers also cannot retaliate against workers for filing claims. Typically, retaliation claims are filed by employees who have been disciplined or fired because they filed discrimination or harassment complaints. Applicants who are rejected may have the basis for filing retaliation complaints against their former employers if they are rejected because of retaliation by former employers. For example, if a former employer lied about an employee’s termination or purposely provided a lot of detail about the perceived shortcomings of the employee when there is a policy against providing references, a retaliation complaint may be viable.
When a previous employer makes false statements to damage your reputation, you may be able to file a defamation complaint. However, the statements must be false. If what the employer said about you is true, you will not be likely to succeed in a defamation lawsuit.
Get help from Swartz Swidler
If you believe that you were denied a job because of any of these reasons, you may have legal rights. The attorneys at Swartz Swidler can help you to determine whether your rights were violated by a prospective or former employer during the hiring process. Contact us today to schedule a consultation by filling out our contact form or calling us at 856.685.7420.