Business Owner's Manual

Hiring

Before you begin the hiring process, think carefully about what you are looking for. Do you want full-time or part-time help? What responsibilities will your employee have? What training or experience is relevant and what personal qualities are important? What kind of references will be necessary?

It's a good idea to write a job description and to use a job application form, which you can buy at a commercial stationery store.

Note:  Many stores still sell outdated application forms that contain questions now prohibited by anti-discrimination laws. Disregard any form more than two years old and use the information below as a preliminary guide to whether the questions are permissible. If you're unsure, check with the New York State Division of Human Rights at 212-961-8400 or an attorney.

Also visit the New York State Department of Labor web page "Looking For Workers".

 

Employees vs. Independent Contractors

Not everyone who works for you is necessarily an "employee" for purposes of withholding tax, workers' compensation, or unemployment insurance, among other issues. The difference between an "employee" and an "independent contractor" is therefore an important one. In general, the more control over the manner and means by which the workers does his or her job — hours, place of work, ownership of tools, etc. — the more likely it is that the employment relationship will be deemed that of employer-employee. If you have questions on this issue, you should consult an attorney or tax advisor.

 

Child Labor

New York has detailed rules governing the employment of minors (under 18). These rules specify the types of working papers that are required, permissible and maximum hours and days that may be worked in any week, the type of work that minors may perform, and the circumstances in which parental consent is necessary. The requirements may differ depending on the job involved and the minor's age. For more information, call the New York State Department of Labor, Division of Labor Standards at 212-352-6981 and ask for the booklet Laws Governing the Employment of Minors.

 

Other Issues

Finally, before you begin interviewing candidates and checking references, you should keep these issues in mind:

• Form I-9. The Immigration Reform and Control Act ("IRCA") prohibits discrimination with respect to hiring and discharge because of national origin or citizenship status and requires employers to complete the I-9 Form (available from the Immigration and Naturalization Service) for all employees, generally within three business days following the start of employment.
  
  
• Pre-employment Inquires. Various federal and state anti-discrimination laws prohibit employers from making certain inquiries in an employment application or during a job interview, which would directly or indirectly reveal protected classifications (e.g., race, age, sex, religion, disability, national origin, etc.) For example, it is unlawful to ask an applicant to state his/her date of birth, country of origin, etc. Prior to an offer of employment, you may not require that an applicant produce a document, such as a driver's license, that would reveal such protected characteristics.
  
  
• Medical Testing. The federal Americans with Disabilities Act ("ADA") protects qualified individuals with disabilities (including psychiatric disabilities) and prohibits employers from requiring medical examinations or making medical inquiries of applicants before an offer of employment has been made. Even after an offer is made, the results of such examinations or inquiries must be kept in a separate file, not in the personnel file.
  
  
• Drug Testing may be permissible after an offer of employment has been made, depending on a number of factors including the industry, how the testing is conducted and whether the employees are unionized. This is a complicated area, and you should check with an attorney if you are considering implementing a drug testing program.
  
  
• Arrest/Conviction Record. It is generally unlawful to refuse employment based on an individual's arrest record or to ask questions about that record prior to employment. Employers with 10 or more employees may not deny employment to applicants on the basis of prior criminal convictions, absent a "direct relationship" between the offenses and the job or "an unreasonable risk" to people or property.
  
  
• Credit Reporting and Background checks. Recent amendments to the federal Fair Credit Reporting Act have imposed strict notice and disclosure requirements on employers planning to obtain a consumer report on a job applicant from a consumer reporting agency. For example, an employer must notify the applicant and obtain his or her written authorization. That notice, moreover, must be in a separate document — not part of the employment application. If you are considering using such reports in your hiring process, you should consult with an attorney to learn about the other restrictions imposed by law.