Hiring culture in the USA. How to invite and fire employees and not be afraid of being sued

Hello everyone, my name is Ruslan GalifanovI am the founder of the IT company VEA, which created the cloud system for printers HelloPrint. Due to the specifics of my work, I often travel abroad, spending a lot of time in the USA. I have always been interested in understanding how American labor law works, since I am a lawyer by education. Thanks to my friends who do business in America, I was able to understand how the hiring culture in America differs from the Russian one. I will tell you about it.

Labor relations in modern Russia and the near abroad are based on Soviet law, which considered the protection of workers and other hired employees (the proletariat) to be one of its main achievements. This is where the 40-hour work week, the right to vacation, and the mandatory reason for dismissal originate. One can debate for a long time about the real situation of workers (and especially peasants) in the USSR, but the desire for progressive labor legislation outlined the framework within which people born after the collapse of the Union work.

Historically, the United States has its own experience in building labor relations, based on case law and acts of the Supreme Court. In this country there is neither a labor code, nor even a criminal one (but there is a tax code). Labor relations are regulated by federal and state laws, and the legal culture in the United States encourages legal action at the slightest violation.

Features of the labor market in the USA

Fierce competition between companies, the reluctance of the state to interfere in labor relations, a large number of migrants, including illegal ones – all this imposes its own characteristics on the hiring culture in America.

The United States also experienced post-Covid recovery growth, which contributed to falling unemployment and the emergence of personnel shortages in some industrieshowever, in general the situation there is better than in Russia: the reputation created by Hollywood and the drawing of green cards contribute to a constant influx of qualified labor.

It is more profitable for an employer to work with an employee officially than to pay him without registration. This is facilitated by the American tax system, where the employee pays the vast majority of taxes for himself. Disadvantaged segments of the population prefer to work “in cash” – this way they will continue to receive various benefits and benefits from the state, such as food stamps.

The employment procedure there is extremely simplified: you can fire or quit in one day.

The main thing is that there is no conflict as a reason for dismissal due to:

– race
– floor
— origin
– marital status
– age
– disability, if health allows you to work in this position
— sexual orientation
— trade union activity

A friend of mine once had to fire a black man, and he was going to sue. He had to fight back and prove that it was not about skin color at all. This can work the other way around, when minorities are turned down because they don't want to cause problems in the future, although the official reason for refusing employment will, of course, sound different.

Features of legislation and legal culture

In the USA there is no labor code (as well as a criminal code, etc.). Labor relations are governed by federal and state laws, and are less influenced by the US Constitution.

The main law that has had a huge impact on labor law in the United States is National Labor Relations Act, which was adopted in 1935 amid the popularity of socialist and other leftist ideas. He met with fierce resistance from corporations.

The law permitted the creation of trade unions, defined the permitted forms of workers' struggle for their rights, such as strikes and pickets, and prohibited employers from interfering in the management and administration of trade unions. Separately, a ban on so-called “yellow” trade unions was mentioned, that is, organizations at the enterprise created and directly controlled by management.

It’s funny that key pre-war industries were not covered by the law: railway and aviation, as well as government agencies.

Twelve years later, after the Cold War had already begun, the Taft-Hartley Act was passed, which significantly limited trade union activities and required their leaders to make public anti-communist statements and coordinate strikes. This law is still in effect.

The U.S. Constitution protects from dismissal those people who report corruption or other crime within their company.

Interview

In recent decades, legislators in the United States have paid great attention to the topic of inclusivity. If an employee is asked about his/her race when applying for a job, this does not mean that the employer is invading their personal life. This information will be needed for reporting. At the same time, about marital status and the presence of children you can't ask. However, in Russia this is not done not worth it either. You don't need to ask about age and citizenship yet (but you should ask about the right to work in the US).

Already at the stage of filling a vacancy or interview, there should not be even the slightest hint of discrimination on any grounds, including age and gender. The vacancy itself should describe future tasks and formulate the necessary competencies for the employee.

By the way, in the USA the practice of calling a previous workplace is very common, so all parties prefer to leave on a good note.

Offer (Job Offer)

Unlike Russia, in American labor law an offer has the force of a full-fledged document. In its offer, the employer must indicate the job title, salary, working conditions and hours, a list of guarantees and a social package. If the actual working conditions differ from what was stated in the offer, the court can quite easily rely on the latter.

Types of labor relations

Employment contract “at-will”

The most common type of employment contract in the United States, which appeared in the 19th century. With this type of employment relationship, the employer can refuse to cooperate with the employee at any time, without giving any justification reason for dismissal. In such cases, the employer is not obliged to notify about the planned dismissal in advance, offer another position in the company or in general somehow worry about the future of this employee.

Somehow, an employee can protect himself by insisting on concluding an additional agreement, which will stipulate the conditions of dismissal, but this does not always happen.

Proponents of this type of relationship point out that both the employer and the employee are on equal terms – after all, the latter can also leave whenever he wants. However, usually no one does this, because everyone wants to part with the former employer on good terms – his recommendation can seriously affect the future career.

By default, an at-will agreement is always concluded unless otherwise specified. In some of them, the employer may specify a condition, for example, that the employee can be fired only for violating labor discipline. Lawyers call such agreements “not pure at-will labor agreement”.

Usually, along with such an agreement, the employee signs the company’s internal rules (handbook guide), which may already contain more detailed aspects, for example, internal corporate rules and communication standards, the dismissal procedure, rules for taking vacation and taking sick leave. They also offer to sign NDAnon-competition agreement and rules for working with business partners.

At-will contracts are difficult to evaluate unequivocally, but no state has abandoned them, except for Montana – the American legislator sees opportunities in this type of contract, not restrictions. For me, as a businessman, this looks attractive. You don't need to spend huge resources on checking each line employee, so as not to rack your brains later, how to fire him correctly. On the other hand, this whole paradise for the capitalist is shattered if there is even the slightest reason to suspect the employer of firing him because the employee belongs to minorities.

Contractual employee

All working conditions are prescribed taking into account the opinions of both parties, therefore different social guarantees can be prescribed in the contract. Typically, high-quality specialists are hired using this scheme: lawyers of large companies, doctors, top managers. First of all, lawyers for American labor law they are finding outwhether the person has this agreement. If not, then the employment relationship is considered under an at-will agreement.

Types of workers

By terms of work

Exist permanent And temporary workers, as well as independent contractors (independent contractor) – essentially like our self-employed or individual entrepreneurs who have obligations only for a specific task or project.

With normalized and irregular schedules

With a standardized schedule (non-exempt employees) blue collar workers work more often – they have strictly prescribed working hours and have a fixed payment for work per hour. For working more than 40 hours a week, they must receive overtime.

With irregular work schedule (exempt employees) almost all office employees work, from line to top managers. It is implied that they sell their mental labor, so they can work overtime and do work outside of working hours. They do not have a minimum wage, and their overtime are not paid in any way. This is exactly what is being talked about when someone talks about constant overtime in America and a 16-hour work day.

After hiring

On the first day, the employee must fill out a number of documents, including Form W-4, where he or she will finally disclose their marital status and indicate the number of dependents, as well as the amounts that must be paid from the salary (for example, alimony). This form is necessary for tax reporting. There is also Form I-9, which is a report to government agencies about the new employee. Many companies use combined databases to compare the information that the employee has provided with what he or she has provided previously. For example, this can confirm the person's right to work in the United States.

Social package (Benefits)

Health Insurance in the USA extremely expensiveespecially if you are not a member of a social minority. More than 80% of American companies provide full or partial health insurance for their employees, as well as for their family members and even pets.

The social package may also include additional days of paid leave. Taking into account holidays of a particular state and days for examination, this can amount to 8 to 10 additional days off per year.

There are special programs for additional pension contributions. This is not an employer's obligation, but such a program is highly valued by employees. The social package also often includes payment for additional education, a gym, insurance against dismissal in the event of pregnancy, and life insurance for an employee working in especially dangerous conditions.

In the US, many companies invest heavily in benefits packages, as this is one of the main ways to compete for top-notch employees.

Vacation and maternity leave

American law does not require most employers to provide the right to vacation in the usual sense. That is, no one can guarantee a vacation for a trip to the sea. In fact, a person can take sick leave and leave for recovery from illness, as well as leave for family reasons (this includes the birth and adoption of children). A woman giving birth is entitled to disability benefits for up to 26 weeks. Federal FMLA allows to request The employer provides maternity leave for up to 12 weeks.

Many companies establish the possibility a two-week vacation after five years of work in the company, but this is not always the case. In addition, even this vacation can be denied if the company is doing badly.

Dismissal

As follows from the above, there are only two types of dismissal in the United States: with cause and without cause. Under an at-will contract, you can be fired without explanation or severance pay. Due to the recent increase in lawsuits related to illegal dismissal, employers prefer to fire with cause, and if this is related to a clear violation of work regulations, the law or company rules, they prefer to have several witnesses who could prove a disciplinary offense.

A businessman I know encountered a case where, in a state where marijuana is legalized, an employee smoked at lunch. When they explained to him that smoking was not allowed at work, he said that he didn’t see anything wrong with it, because it was legal. I had to go with him quite legal breake down.

In addition, employers still try to support employees if they are forced to move to another state and fire a person after many years of honest work. In this case, they can pay the reward for several months.

Pension

The pension system in the United States has been operating since 1935. Currently, the retirement age in the United States ranges from 66 to 67 years for men and women (depending on year of birth). You can retire early at 62, or you can work until you’re 70. The size of the pension directly depends on the salary that the employee received during his working life; if the salary was good, a person can receive more than three thousand dollars, and if he did not work, he will receive the minimum, which is tied to the cost of living established in the state.

Additional private pension programs such as IRA, 401(k), 403(b) are also popular among Americans. The most popular is 401(k), named after an article of the US Tax Code. The program allows you to voluntarily contribute money to your future pension, and do so from your salary before taxes. The employer can also make additional contributions to this account (from 10% to 100%) – this is considered an important bonus from the employee's point of view. The peculiarity of this savings system is that the person himself determines where to invest this money. He even has an inalienable right of ownership to it. With his own money – immediately, and with the employer's money – in 5-6 years.

In the comments, it would be interesting to hear the opinions of those who managed to work in the post-Soviet space, in the USA or other countries.