How to Identify and Report an Illegal Job Posting
Earlier this week, Epicurious director David Tamarkin excitedly tweeted that they needed a “spicy, food-obsessed editorial assistant.” Within 48 hours, the publication was ruthlessly criticized by the media on Twitter, and the New York State Department of Labor was even forced to intervene . What happened?
First, let’s take another look at the post itself:
For anyone who has read more than a few “entry-level” job descriptions, this is depressing but familiar: a large corporation wants to hire one person (“early in their careers,” naturally) to do the job with about three experienced full-time employees. with undisclosed hourly rates and no incentives. In terms of work-life balance, there are many red flags here, but there are also some very real legal issues with the original post. There is a fine line between “this job is likely to suck” and “this is actually illegal,” and all job seekers — especially young people or anyone just starting out in a new industry — need to know the difference.
When it comes to job advertisements, the most common violations involve categorizing workers and / or discriminating against members of the protected class. Knowing your rights and how to report illegal activities is the first line of defense against labor exploitation. Here’s what you need to pay attention to.
Employee classification, tax laws and labor standards
To understand why this job posting exploded this way, you need to know the difference between an independent contractor and an employee . The main difference between the two is who is responsible for withholding taxes on earned income: independent contractors and freelancers withhold and pay their taxes, while employee taxes are automatically withheld by their employer.
However, it’s not just taxes that are at play; Equally important is the “independent” part of the “independent contractor”. If you do freelance work for a company, they have absolutely nothing to do with how or where you do your work as long as you get it done on time. According to the New York State Department of Labor, “ Independent contractors are free from oversight, direction, and control in their operations. This means that employers cannot require freelancers to come to the office, attend meetings, or otherwise tell them how to spend their time:
From a legal point of view, there is no such thing as a full-time freelancer. Even if a job posting advertises a freelance job that requires 40 hours of work per week, they can’t get the independent contractor to stick to their normal Monday to Friday schedule from 9 am to 5. The job post Epicurious made a mistake advertising a freelance job for more than the workload of a full-time employee, but also with strict requirements for the place of work: in their office, presumably during a standard working week. Bottom line: If the job posting tells you when, where, and how you will work for them, they’ll be better off withholding taxes from your paycheck – and ideally providing you with a benefit package.
Because the classification of workers determines who pays employment taxes and when, both state and federal labor ministries take complaints of misclassification very seriously. Condé Nast learned this the hard way:
It has since been “made clear ” that the job will eventually be permanent and with benefits: health insurance, 401 (k), and sick leave.
Protected classes
Employment discrimination based on protected classes is illegal in the United States, and the Equal Employment Opportunity Commission (EEOC) is the primary agency responsible for enforcing federal laws affecting it. Here’s what they have to say about job ads :
“It is illegal for an employer to post a job posting that shows preference or discourages someone from applying for a job because of his or her race, color, religion, gender (including gender identity, sexual orientation and pregnancy), nationality. origin, age (40 years and older), disability or genetic information ”.
In other words, it is illegal to list a preference for certain protected class members on a job posting: “entry level” is fine, but “we’re looking for a recent college graduate” is not, because it might scare people away. more than 40 from the filing of the application. Wording isn’t the only form of job posting discrimination: a 2018 EEOC complaint alleges that targeting Facebook job ads to a specific audience scares and even prevents others from applying, which could be a violation of federal law.
EEOC standards also apply to job assignments, recruitment strategies, and application and recruitment practices, including interview questions , background checks, and application tests. The latter can only be used to obtain information “necessary to determine if a person is fit for the job” – so no questions asked about race, age, religion, disability, gender, etc.
Most employers with HR know what they can and cannot say in a job posting, so gross EEOC violations are rare; Epicurious’s original post contained nothing at all. However, from time to time, something escapes. Be sure to read the EEOC Prohibited Working Practices so you know what to look for when looking for a job.
How to report violations
In general, if there is a problem with employee classification or other labor standards, contacting your state’s labor department is a good first step. However, if you see a message that discriminates based on Protected Class, you can file a complaint with the EEOC .
However, the departments of Labor and EEOC – are not the only regulators involved in discrimination at the reception on the job ; The formal grievance process is complex and often very slow. Here’s where visibility can be useful: When work at Condé Nast went viral, people started tweeting to the NYS Department of Labor to get them involved, and it worked. If and when you come across exploitative or illegal job postings in the wild, don’t be afraid to make some noise. Share them with your friends, post on social networks, do your best to get noticed. More than ever, workers must defend our rights – silence only encourages further exploitation.