Federal law and guidance on this subject should be reviewed together with this section.
- Under the Idaho Human Rights Act (IHRA), an employer may not refuse to recruit or hire a prospective employee based upon any protected characteristic. The IHRA applies to private employers with five or more employees. See Idaho Human Rights Act.
- Job advertisements may not discriminate on the basis of race, color, religion, sex, national origin, age or disability. See Idaho Human Rights Act.
- Idaho's Department of Labor Idaho Works system provides an online venue in which employers and job seekers may access a comprehensive information system to assist in a variety of employment and training services throughout the State of Idaho. See Methods and Sources.
- Private employers may give a hiring preference to veterans and the spouses of disabled veterans with a service-connected disability. See Veterans Preference.
- Employers that hire minors must be aware of restrictions concerning permissible hours of work as well as types of jobs in which minors may engage. See Underage Workers.
- Employers must understand the differences between hiring employees versus independent contractors because misclassifying workers can have serious financial and legal consequences. See Independent Contractors.
Idaho Human Rights Act
Idaho has implemented antidiscrimination statutes, commonly known as the Idaho Human Rights Act (IHRA), that provide employment protections in addition to federal law. The IHRA gives the right to individuals to obtain and hold employment free from discrimination by all employers based on race, creed, color, sex or national origin. +Idaho Code § 67-5901, et seq.
With respect to job advertisements, the Act makes it unlawful for an ad to indicate a preference, limitation or specification, or to discriminate on the basis of race, color, religion, sex, national origin, age or disability. +Idaho Code § 67-5909(4).
The IHRA applies to private employers with five or more employees, except for employers of domestic workers hired to work in or about a person's household. It also covers all public employers regardless of size, as well as employment agencies and labor organizations.
The Act defines discrimination as refusing to hire, discharging or otherwise discriminating in the terms or conditions of employment on the basis of age, race, color, religion, sex, disability or national origin. +Idaho Code § 67-5901, et seq. The protections of the IHRA are limited to employees, and are inapplicable to independent contractors. Ostrander v. Farm Bureau Mutual Insurance Company, +851 P.2d 946 (Idaho 1993).
Idaho law also forbids discrimination by employers against healthcare professionals in circumstances in which the professional declines to provide a healthcare service that violates his or her conscience. +Idaho Code § 18-611.
Bona Fide Occupational Qualification Exception
An employer may take certain protected characteristics into account in recruiting prospective employees where the reason for doing so relates to a bona fide occupational qualification (BFOQ).
This exception applies, however, only in limited circumstances. In addition, employers in Idaho can never justify discrimination based on race or color because of a BFOQ.
Methods and Sources
The State of Idaho, through the Idaho Works website, offers a comprehensive information system used to deliver employment and training services as well as unemployment insurance to state residents. The Idaho Works system provides free job services for employers and job seekers. Employers can list job openings and access job seekers' résumés.
Meanwhile, job seekers can create and edit résumés and other documents, store them and e-mail them to employers, and obtain information about job fairs, workshops and other employment-related events.
In addition to Idaho Works, employers have several employee recruiting resources at their disposal. For instance, referrals, press advertising, online postings, LinkedIn, professional organizations and job fairs all offer valuable services.
Employee referrals provide an efficient way to hire new workers. Recruiting expenses can be minimized, and employees are given a stake in the composition and effectiveness of the workforce. Relying exclusively on employee referrals, however, can create discrimination risks under the Idaho Human Rights Act, which prohibits bias on the basis of age, race, color, religion, sex, disability or national origin. +Idaho Code § 67-5901, et seq.
For example, a failure to recruit minority referrals may violate prohibitions against the disparate treatment of minorities and other protected classes. In addition, employers may find themselves liable for discriminatory recruiting practices if the effect of hiring based on employee referrals creates a disproportionate "adverse impact" on minorities or other protected classes.
Regardless of an employer's intent, if a recruiting policy is discriminatory in its application or effect, such recruiting practices will expose the employer to liability under state and federal antidiscrimination laws.
A private employer in Idaho may give preference in hiring and promotion to veterans and certain other individuals along similar lines to the state government hiring preference. +Idaho Code § 65-513. This law applies to:
- Veterans and disabled veterans;
- The widow(er) of any veteran if the individual remains unmarried;
- The spouse of a service-connected disabled veteran if the veteran cannot qualify for any public employment because of a service-related disability.
Idaho requires that minors receive education until at least the age of 16. No child under the age of 14 is permitted to work in any mine, factory, workshop, mercantile establishment, store, telegraph or telephone office, laundry, restaurant, hotel, apartment house or in the distribution or transmission of merchandise or messages.
Employers are prohibited from hiring children under 14 to work during school hours, before 6 a.m., or after 9 p.m., but minors over 12 are permitted to work during public school vacations of two weeks or more. Minors under 16 are not permitted to work more than nine hours per day and 54 hours per week.
Minors under 16 are not permitted to work during school hours unless they can read and write and have received instruction in spelling, English grammar and geography, and are familiar with the fundamental operations of arithmetic up to and including fractions or have similar attainments in another language. However, a student may be employed by the public schools for up to 10 hours per week, if the employment is voluntary and with the consent of the parent or guardian.
Employers must keep a record of the names, ages and places of residence of minors between the ages of 14 and 16. +Idaho Code § 44-1301 et seq.
Violation of Idaho's child labor requirements (such as working during school hours or working in certain forbidden occupations) can result in a $50 fine and further daily fines of $20 if the violations are not corrected. +Idaho Code Ann. § 44-1305.
Three different agencies determine whether workers are employees or independent contractors: the Idaho Industrial Commission (workers' compensation law), the Idaho Department of Labor (unemployment compensation), and the Internal Revenue Service. Each agency uses its own guidelines and makes its own decision when classifying workers. Misclassifying workers can have serious tax, workers' compensation insurance and other financial consequences.
In terms of workers' compensation, misclassifying employees as subcontractors instead of employees is illegal in Idaho and can result in substantial premium payments due at an audit, policy cancellation, civil or criminal charges, fines and jail time. +Idaho Code § 72-201, et seq.
Additionally, injured employees may claim compensation under Idaho's Workers' Compensation law and, if successful, shall be awarded in addition to compensation, additional money equal to 10 percent of the total amount of the employee's compensation, plus costs, if any, and reasonable attorney's fees. +Idaho Code § 72-210.
A general contractor is deemed the employer of an injured worker of a subcontractor working under the general contractor if the subcontractor does not have the required workers' compensation insurance. +Idaho Code § 72-216
An employer and worker's agreement concerning employment status has no bearing concerning workers' compensation. Injured employees are covered under workers' compensation if an employer-employee relationship exists, as determined through the four criteria commonly referred to as the right-to-control test:
- Direct evidence of the right to control;
- Method of payment;
- Furnishing of equipment; and
- The right to terminate the relationship without liability.
Correctly classifying workers can be difficult and complicated at the recruitment stage as well as later in the process. Therefore, counsel should be consulted to aid in these determinations.
For unemployment insurance purposes, services performed by a worker are considered covered employment unless two requirements are met:
- The worker has been and will continue to be free from employer control or direction over the performance of his or her work; and
- The worker is engaged in an independently established trade, occupation, profession or business. +Idaho Code § 72-1316(4).
For tax purposes, the IRS says that an individual is an independent contractor if the payer only has the right to control or direct the result of the work and not what will be done and how it will be done.
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