What a Potential Employer Can and Cannot Guarantee to a Job Applicant
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Job markets are not just competitive for workers, they are competitive for employers as well. While it may be true that there are still many unemployed or underemployed workers out there, many employers also report a dearth of qualified workers for the jobs they need filled. This creates enormous competition for employers seeking to fill certain positions with only a limited pool of qualified applicants. This also leads many employers to make promises to job applicants in order to secure their employment. Many of these promises, however, are illegal for employers to make, as they place an undue and unfair risk on you, the worker, should you make decisions and take actions based on an expectation of delivery on those promises. Other guarantees may not be against the law, necessarily, but are impossible to enforce and, therefore, still pose the same risks to workers. Learn what guarantees an employer can and cannot make to you on a job application or during a job interview, and what guarantees an employer is, in fact, required to make.
Guarantees of Employment
Employers cannot state or imply a guarantee of employment in job postings or descriptions. Most employers are made keenly aware of this fact by their legal team and include on their application a statement that the application does not constitute a guarantee of employment. When you do not see this statement printed on an application, however, you still should not assume that it implies a guarantee of employment exists. Rather, whether the statement is printed on an application or not, no employer can legally guarantee you employment simply for filling out an application. In fact, no employer can guarantee you employment until he or she officially offers you employment, and, even then, in an ‘at-will’ state like Maryland, where you and the employer are free to terminate the relationship at any time and for any or no reason, an employer can even rescind an offer once granted.
When hiring you, an employer should not guarantee you future employment so long as you continue to perform. A promise such as this is unenforceable and the employer can easily change their mind for any reason, or no reason at all in an at-will state. In many instances, it creates a gray area in at-will states, called an implied contract. This is virtually impossible to fight legally. Performance is also a subjective measurement, which is why unemployment compensation claims are paid out to workers fired for poor performance but not for more objective offenses like violating company policy. An employer can decide on a whim to change how to gauge your performance, and any earlier promise of continued employment for good work is undercut.
Sensitive Employee Data
One guarantee that employers can and should make to prospective employees is confidentiality of their sensitive personal information, including the following:
- Personal data – Social Security Number, marital status, date of birth, address
- Hiring data – resume, job application, employment history and assessments, reference checks and background checks, I-9 forms
- Performance data – performance reviews and documentation, disciplinary notices and warnings, documented accolades, job descriptions, promotions and other documented job changes
- Benefits and compensation – hourly wages or annual salary, bonuses and merit increases, benefits information, changes in pay and other forms of payment
- Payroll data – work schedules, time cards or time sheets, pay stubs, pay deduction or withholding authorizations, direct deposit forms, tax forms and tax status change forms
- Termination – resignation letter, layoff or termination records, claims for unemployment insurance
- Attendance – time off, leaves of absence, sabbaticals and dates and causes for absences in general
In some industries, laws exist that require employers to create procedures and processes for safeguarding and securing sensitive data about its employees, including how employees are to be notified in case of any confidentiality breach.
The Health Insurance Portability and Accountability Act (HIPAA) is one such law, specifically protecting the privacy of people’s medical and health-related information. This law and the Genetic Information Nondiscrimination Act (GINA), Americans with Disabilities Act (ADA), Workers’ Compensation law and the Family and Medical Leave Act (FMLA) protect the confidentiality of the following health and medical information about employees:
- Benefits and insurance enrollment forms and claims info
- Medical exams
- Results of physicals
- Drug tests and results
- Workers’ comp records
- Doctor’s notes
- Leave information, including medical documentation and FMLA certifications
Employers can also guarantee confidentiality of any statements you may make now or in the future in the context of an internal investigation into allegations of misconduct in the workplace, such as sexual harassment. There have been instances where the courts have overridden this confidentiality mandate for the purposes of a fair and expedient resolution to a case. However, barring these rare exceptions, it is still incumbent on employers to keep this information private. Such protected statements and records include:
- Complaints of discrimination, harassment, threats or retaliation.
- Disciplinary or conduct concerns.
- Rule or policy violations.
- Security and safety issues.
- Work-related illnesses and injuries.
The H-2B Program
If the job applicant is a non-immigrant foreign national hired temporarily under the H-2B program to perform non-agricultural services and labor in the U.S., there are certain guarantees the employer must make. Among the most salient of these is known as the ‘Three-Fourths Rule’, and it requires employers hiring under the H-2B program to guarantee that such employees will work at least 75 percent of the workdays out of each 12-week period. If employers are unable to provide that number of hours for a particular period, this law requires that the employer still pay the employee for the full amount of hours had they indeed worked the minimum guaranteed number of days.