Like all aspects of the employment relationship, the hiring and onboarding processes are subject to various legal requirements under South Carolina and federal law. For both new and established employers, compliance is a necessity, and companies of all sizes need to have clearly-documented policies and procedures that are designed to mitigate the risk of lawsuits and complaints.
In the hiring context, many of the greatest risks for employers arise out of the state and federal anti-discrimination laws. These laws are complicated (and they have seen some significant changes in recent years), and it is imperative for employers to ensure that their managers, supervisors, and human resources (HR) personnel have a clear understanding of what is allowed and what is prohibited. However, once a hiring decision has been made, compliance obligations are not over, and there are various risks that must be addressed during the onboarding process as well.
Discrimination During the Hiring Process: Understanding and Mitigating the Risks for South Carolina Employers
The same anti-discrimination laws that apply to ongoing employment relationships apply to the hiring process. This means that employers have an obligation to make hiring decisions based solely on job candidates’ relevant qualifications, and not based upon any protected characteristics. By way of example, forms of hiring discrimination that are prohibited in South Carolina include:
- Age-based discrimination (i.e., deciding not to hire a job candidate who is 40 years old or older based upon his or her age)
- Disability-based discrimination (i.e., deciding not to hire a job candidate who is a qualified individual with a disability, or failing to make reasonable accommodations during the hiring process)
- Discrimination based on gender, sex, or genetic information
- Discrimination based on citizenship status
- Discrimination based on marital or parental status
- Discrimination based on race, color, ethnicity, or nationality
- Discrimination based on sexual orientation or gender identity
These prohibitions apply not only to the ultimate hiring decision itself but also to any decisions made during the screening and interviewing processes. Thus, it would be illegal, for example, for an employer to selectively require drug testing based on an employee’s race, sex, or citizenship status, or to simply refuse to consider applicants who fall into certain protected classes. Employers should carefully consider the questions asked and information sought on employment applications and during interviews.
While organizations cannot make employment-related decisions based solely on job candidates’ protected characteristics, it is lawful for companies to make decisions based on bona fide occupational qualifications (BFOQs)—even if these BFOQs relate in some way to a candidate’s sex, religion, or national origin. As the U.S. Equal Employment Opportunity Commission (EEOC) explains:
“Title VII provides an exception to its prohibition of discrimination based on sex, religion, or national origin. That exception, called the bona fide occupational qualification (BFOQ), recognizes that in some extremely rare instances a person’s sex, religion, or national origin may be reasonably necessary to carry out a particular job function in the normal operation of an employer’s business or enterprise.”
The BFOQ exception applies only to discrimination under Title VII of the Civil Rights Act of 1964, and it does not apply to all protected characteristics. For example, as the EEOC goes on to state, “The protected class of race is not included in the statutory exception and clearly cannot, under any circumstances, be considered a BFOQ for any job.”
Appropriately applying the BFOQ exception requires an in-depth understanding of the law; and, when there are any concerns about possible allegations of unlawful discrimination, employers should consider consulting with their employment law counsel.
Legal Requirements for Employee Onboarding in South Carolina
Once a hiring decision has been made, the employer’s compliance concerns shift to ensuring that the employee is onboarded appropriately. While different organizations’ legal needs will vary, in broad terms, some of the key legal compliance concerns for employers during the onboarding process include:
- Employment eligibility verification – Under federal and state law, employers in South Carolina are required to verify their new hires’ employment eligibility within three days of hire. Employers must fully complete Form I-9 and use the web-based E-Verify system. Non-compliance can lead to steep penalties, including probation, additional reporting requirements, and fines for each individual violation.
- Employment tax law compliance – When onboarding new hires, South Carolina employers must ensure that they comply with all pertinent federal and state employment tax laws as well. Among other things, this means ensuring that the new hire completes all required tax forms and that payroll taxes are appropriately withheld.
- Wage and working condition anti–discrimination compliance – When determining new hires’ compensation structures and work assignments, companies must make all decisions based upon valid business considerations. Decisions may not be discriminatory in nature; and, to the extent that a new employee’s compensation structure or working conditions may be unequal to those of existing employees, the legitimate business rationale should be clearly documented.
- Notice compliance – State law requires employers to give employees notice of their wage rates or salaries, when they are paid, where they are paid, expected hours, and any paid time off benefits. Federal law requires that employees be given notice of their rights under the Family and Medical Leave Act (for employers with 50 or more employees), either through a handout or an employee handbook. It is also important to make employees aware of the organization’s non-discrimination and anti-harassment policies.
- Employee education and compliance training – During the onboarding process, it is also important for companies to provide appropriate employee education and compliance training. While each employer’s education and compliance training needs will vary, in general terms, employers should focus on ensuring that employees are aware of the organization’s compliance efforts (i.e. where requisite policies, signs, and notices are located and their content) and of their own personal roles in supporting the company’s anti-discrimination efforts.
When addressed appropriately, the legal risks associated with the hiring and onboarding processes can be managed. However, if left unconsidered, they can potentially lead to significant liability exposure for companies of all sizes. Prior to beginning the hiring process, companies in South Carolina need to make sure that they have all of the necessary policies and procedures in place, and the company’s managers, supervisors, and HR personnel must have a clear understanding of the types of mistakes that can get the company into trouble.
Speak with a South Carolina Employment Lawyer at Gignilliat, Savitz & Bettis, LLP
Gignilliat, Savitz & Bettis, LLP is a South Carolina employment law firm that exclusively represents employers. If you have questions about your company’s legal obligations during the hiring and onboarding processes, we encourage you to call 803-799-9311 or contact us online to arrange a confidential consultation with our employment lawyers.