By Ronald I. Paltrowitz, Esq.
Hopefully, there will come a time in the life of every business when it will become necessary, or at least desirable, to hire that first employee. In the last edition of Business Matters (Spring 2010), I addressed the distinction between employees and independent contractors. Hiring the former involves different considerations than retaining the services of the later. While the independent contractor is usually hired on a project by project basis, an employee, whether full or part time, is someone whom you intend to make a part of your business for the foreseeable future. Mistakes in choosing an independent contractor can be easily remedied if you have prepared a properly drafted independent contractor agreement that foresees the possible need for termination. On the other hand, despite the fact that employer/employee relationships in New York are governed by the doctrine of “employment-at-will”, the freedom to fire an employee after the employee has been hired has been severely curtailed over time by federal and state statutes (many of which I summarized in the Winter 2010 edition of Business Matters) and by the courts. Furthermore, an employer’s improper questions during the application process could lead to legal liability even if the applicant is not hired.
Having decided to hire, the job description and qualifications should be carefully determined. Whatever the job, the qualifications usually require some minimum level of education, experience, and ability. In each of these areas, a delicate balance must be struck as various laws prohibit setting limits that discriminate by disqualifying applicants who actually have the abilities to do the job. In addition, things like language and physical abilities must be related to, and an important part of, job performance. And please don’t forget that there are various federal and state restrictions on hiring employees under either 18 or 16 years of age.
When interviewing the applicant, an employer must be aware of questions that should not be asked. Some of these (but certainly not all) include the following: Questions seeking information regarding race, color, religion, ancestry, place of birth or national origin, age (you may ask if the applicant is over 18 or old enough to meet age restrictions such as those for a bartender, but not questions that seek to determine if the applicant is over 40 years of age), sex, marital status, sexual orientation, disabilities (except to determine ability to do the job), names and/or relationship of persons with whom the applicant resides, whether the applicant owns or rents a home, or information regarding credit history. Questions regarding citizenship can be especially tricky. For example, while you may ask if the applicant is a US citizen or intends to become one, you cannot ask to see proof of citizenship until after the applicant is hired. If the applicant is not a citizen, you may inquire if the applicant is prevented from working in the US because of visa or immigration status, but not of what country the applicant is a citizen. Inquiries regarding military history also have restrictions and you may only ask to see a military discharge certificate after the applicant has been hired.
Obviously, proper preparation must include consultation with an expert in this area and a clear understanding of the inquiries that should be avoided. But don’t let the complexities dissuade you. Once the basic concepts are understood, you should be ready to find a qualified employee without fear of repercussions.
© 2010 Ronald I. Paltrowitz, Esq. Ronald I. Paltrowitz, acting as an outsourced general counsel for his clients, provides legal and business counseling to entrepreneurs and closely held enterprises in the areas of corporate and business law, real estate, intellectual property, and commercial litigation and arbitration. Mr. Paltrowitz is also Vice-President and General Counsel of the Manhattan Chamber of Commerce. This column is for your general information only and does not substitute for legal or accounting advice regarding your specific situation.