The maze and layers of federal, state and local employment laws in the US can create a minefield of potential liability for a foreign-based employer. It has been our experience that foreign employers are sometimes completely surprised to learn that, for example, it is illegal to fire an employee because she is pregnant; that paying an employee a ‘salary’ does not necessarily defeat their right to be paid for overtime; that different safeguards must be followed when terminating an employee over the age of 40; and that certain accommodations must be made in recognition of an employee’s disability or religious beliefs. Nowhere is this misunderstanding more prevalent than in the process of interviewing job applicants for open positions.
The following case study and analysis illustrates the applicable rules, as well as the potential liability facing an unwitting prospective employer. Hopefully, most employers will be able to spot some of the errors made by the employer in this hypothetical situation.