The Hiring Process
No matter what kind of business you run, your success or failure depends largely on the quality of your staff. The hiring process, including everything from writing a job description to conducting interviews and choosing the best candidates, should always be done with careful attention to detail. There are a host of laws that an employer must follow during the hiring process. FindLaw's The Hiring Process section provides information about job advertisements, illegal interview questions, discrimination laws, drug testing, background checks, employment contracts and related issues. In this section, you can also find information about what distinguishes an employee from an independent contractor, and the consequences of misclassifying a worker.
Federal Hiring Laws
There are various hiring laws that employers must comply with, both on a federal level and state level. Many of the federal laws are in place to prevent discriminatory practices in both hiring and during the course of employment. Federal laws prevent discrimination based on various factors including age, race, color, national origin, sex, religion, and genetic information. Federal law also requires that men and women who perform substantially the same work, in the same or similar positions (at the same company) must be paid equally. The federal government also requires employers to verify that a person is legally eligible to work in the United States within three days of an employee's start date. It's important that your business has interview questions that are in line with federal laws, and that they do not come across as discriminatory toward any group.
Independent Contractors vs. Employees
It's very important to classify your workers correctly because failure to do so can land you in hot water, particularly with the Internal Revenue Service (IRS). Classifying a worker takes more than just giving him or her a job title. In fact, the job title doesn't matter; it's the core of the relationship between the worker and the business that defines a person's status as either an employee or an independent contractor. There are several factors used to determine the status of a worker, but the root of the issue is the degree of control an employer has over the worker. Basically, the more control the employer has, the more likely it is that the worker is an employee.
The classification of a worker matters for both the employer and the worker. Employers are required to perform certain actions on behalf of employees. These include withholding a portion of an employee's paycheck and paying employment taxes. Employers are also required to comply with federal laws related to family and medical leave when it comes to employees. Independent contractors, on the other hand, have to pay their own employment taxes and do not receive the benefit of federal family and medical leave laws.
Hiring an Attorney
It's important that your business has hiring policies and practices that comply with all federal and state laws. If you would like help setting up sound policies and practices - or would like the policies and practices you have in place reviewed by a professional - you should consult with a local employment law attorney.
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