Religion. In December, Donald Trump proposed banning Muslims from entering the United States, citing concerns about “radical Islamic terrorists.” If an employer has the same concerns about security, can it prohibit the hiring of Muslims? No. Title VII of the Civil Rights Act and similar state laws prohibit employment discrimination “because of . . . religion,” with few exceptions – such as for religious institutions and very small “mom and pop” businesses.
National origin. Mr. Trump next proposed a ban on immigration from certain countries that are known breeding grounds for terrorists, and has referred unfavorably to illegal Mexican immigrants. If an employer has the same concerns, can it prohibit employment of persons born in certain countries? Again, no. Title VII and similar state laws also prohibit employment discrimination based on “national origin.” Moreover, federal immigration law prohibits discrimination based on citizenship status, so long as the person has a legal right to work in the U.S. Employers cannot ask an applicant whether he or she is a citizen and should only inquire if the applicant is eligible to work in the U.S. On the other hand, it is illegal to hire undocumented aliens.
Wages. An employer also would face challenges using Mr. Trump’s “breach and then renegotiate” approach to contracts when dealing with employee wages that already have been earned. Unlike the U.S. Bankruptcy Code which permits paying pennies on the dollar for some debts, wage and hour laws don’t allow renegotiation of earned employee compensation, even if the enterprise is losing money (e.g., casinos in Atlantic City) or the boss decides to fire the worker because he or she is a “loser,” “stupid,” “lazy,” “low energy,” or “crooked” (see The Apprentice). Moreover, even if a company goes under, its owners and executives still may be individually liable for unpaid wage obligations. I know – that is so unfair.
Constitution. Putting aside whether or not Mr. Trump ever read it, does the Constitution restrict the terms of employment by private employers? Good news here for private companies – the Constitution generally restrains only the government and public employers. The bad news – or good, if you believe in civil rights and other protections for workers – is that several other laws, as sampled above and below, fill in the void to restrict private employers.
Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.