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Recruitment

Advertising

What are the requirements relating to advertising positions?

Generally, there is no standard procedure relating to advertising for jobs (although discrimination laws apply to job advertising). Some employers may have an affirmative action plan in place that requires them to follow self-imposed rules in order to comply with the plan. Employers with collective bargaining agreements may have bargained job posting procedures in place that they must follow to comply with the agreement. Other employers may have their own internal and external recruiting policies and procedures in place which should be followed consistently.

Federal contractors obligated under the Vietnam Era Veterans’ Readjustment Assistance Act, as amended by the Jobs for Veterans Act, are required by regulation to post open positions with an appropriate employment service delivery system.  

Background checks

What can employers do with regard to background checks and inquiries in relation to the following:

(a) Criminal records?

Federal law does not prohibit employers from asking about applicants’ criminal history. However, state and local laws may prohibit or regulate such checks – many such laws were recently enacted as ‘ban the box legislation. Also, federal equal employment opportunity laws prohibit employers from discriminating when they use criminal history information. Using criminal history information to make employment decisions may violate Title VII of the Civil Rights Act of 1964.

(b) Medical history?

The Genetic Information Non-discrimination Act of 2008 prohibits employers and health insurers from discriminating on the basis of genetic information, including family medical history. Medical history inquiries are also regulated by the Family and Medical Leave Act and the Americans with Disabilities Act. State and local laws may provide broader coverage than the Genetic Information Non-discrimination Act.

(c) Drug screening?

Private employers generally may test job applicants and employees for drugs, alcohol and other controlled substances. Several states have enacted statutes or regulations that restrict these tests, including with respect to medical and recreational marijuana.

Before testing anyone, an employer should establish and follow reasonable testing procedures and policies. Employers in specific industries (eg, transportation) and employers that do business with certain government agencies may be required by federal law to establish a drug-free policy and, in some cases, to test applicants and employees for the presence of certain drugs. Employers with employees represented by a union must bargain for the right to test before testing such employees.

(d) Credit checks?

An employer may incur liability under the Fair Credit Reporting Act by procuring or causing to be prepared consumer reports or investigative consumer reports on present or prospective employees if the individuals are not advised in writing and do not give their written consent that information about their character, general reputation and personal characteristics may be disclosed in the report. If an employer rejects an applicant either wholly or in part because of the information contained in a consumer report or investigative consumer report, the employer must advise the applicant of this fact prior to making the decision and his or her rights under the act, and supply the name, address and toll-free phone number of the consumer reporting agency that made the report. A wilful violation can result in actual damages, punitive damages and attorneys’ fees. An employer that negligently fails to comply with the act will be liable for actual damages and attorneys’ fees.

Several states have enacted similar legislation that may impose additional requirements.

(e) Immigration status?

The Immigration Reform and Control Act of 1986, as well as Title VII of the Civil Rights Act, penalise employers for discriminating against employees or applicants because of national origin or citizenship status. Similar prohibitions exist in various state laws.

(f) Social media?

There are no specific federal laws pertaining to social media. However, there are a variety of federal and state laws dealing generally with social media issues (eg, data privacy issues).

Additionally, the National Labour Relations Act protects employees who engage in concerted activity involving wages, hours and working conditions, and limits employers’ ability to conduct surveillance or monitoring of employees. The National Labour Relations Board has taken the position that social media usage may constitute protected concerted activity and has also frowned on employers’ attempts to curtail or control employees’ social media use.

(g) Other?

N/A.

Wages and working time

Pay

Is there a national minimum wage and, if so, what is it?

The Fair Labour Standards Act of 1938 generally requires the payment of a statutorily prescribed minimum wage to all covered employees except certain younger workers, who may be paid a sub-minimum training wage for up to 180 days. The current federal minimum wage is $7.25 per hour.

Some states have enacted legislation requiring the payment of wages in excess of the federal minimum wage.

Are there restrictions on working hours?

There are no federal restrictions in the United States on employee working hours, except for break times for nursing mothers.

Some states have enacted legislation requiring mandatory meal and rest breaks.

Hours and overtime

What are the requirements for meal and rest breaks?

There are no federal requirements in the United States on employee working hours, except that:

  •  non-exempt employees must be paid overtime for hours over 40 in a working week; and
  • non-exempt nursing mothers must be given reasonable break times to express breast milk for their nursing child one year after the child’s birth each time such employee has a need to express breast milk, and must be afforded an appropriate place (other than a bathroom) shielded from view and free from intrusion from co-workers and the public in which to express breast milk. 

Some states have enacted legislation requiring mandatory meal and rest breaks.

How should overtime be calculated?

The Fair Labour Standards Act requires employers to pay overtime to all non-exempt employees at a rate of one and one-half times the employee’s regular rate for all hours worked in excess of 40 per week.

Other federal and state laws may require a higher overtime rate. 

What exemptions are there from overtime?

The payment provisions of the Fair Labour Standards Act contain numerous exemptions from the minimum wage and overtime requirements, including exemptions for certain white collar employees (eg, executive, administrative or professional employees, computer professionals and outside salespeople). The Department of Labour recently enacted Fair Labour Standards Act overtime regulations that dramatically restrict such exemptions by increasing the salary requirements for exempt employees – from $455 per week to $913 per week for exempt employees; and from $100,000 per year to $134,004 per year for highly compensated employees. The changes take effect on December 1 2016.

Some states proscribe certain deductions from wages by an employer.

Is there a minimum paid holiday entitlement?

There are no federal requirements in the United States on holiday pay. 

Some states have enacted legislation requiring paid holiday entitlement.

What are the rules applicable to final pay and deductions from wages?

The Fair Labour Standards Act generally precludes deductions from salary for exempt employees. Wages are generally due upon completion of work and must be paid within a reasonable time thereafter, although many states provide for a specific time period. Payment must be made by cash, cheque or, in some states, direct deposit to an employee’s bank account or pay cards, and must be accompanied by a statement showing gross wages, deductions and net wages. 

Some states also impose time requirements on final pay and preclude deductions from wages except for certain specific reasons.

Record keeping

What payroll and payment records must be maintained?

Most federal and state statutes governing wages and hours require employers to maintain records that accurately reflect hours worked.

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