Being Asked Your Age and Other Legal Questions About Getting Hired

Jobs are — at the end of the day — a business agreement between you and an employer. These agreements are based on laws, regulations and more. How do job seekers navigate the legal landscape? It's not easy, but employment lawyers can help.

Employment and civil rights attorney Austin Kaplan , who is founder and managing attorney at the Kaplan Law Firm , joined LinkedIn News Editor Andrew Seaman on the latest episode of his Get Hired podcast to answer common legal questions about looking for work. The two unravel what is and isn't allowed in the hiring process, and equip you with the knowledge to navigate a search for work.

You can listen to the episode above or on Apple Podcasts by clicking here . A transcript of the conversation is available below.

TRANSCRIPT: Being Asked Your Age and Other Legal Questions About Getting Hired

Andrew Seaman: As much as managers and other team leaders throw the word family around at work, make no mistake that your job is essentially a business agreement between you and the employer. How do you navigate the legal landscape tied to all of that? Well, we're talking all about it on today's episode, right after this break.

From LinkedIn News, this is Get Hired, a podcast for the ups and downs, and the ever-changing landscape of our professional lives. I'm Andrew Seaman, LinkedIn's senior managing editor for jobs and career development, bringing you conversations with experts who, like me, want to see you succeed at work, at home, and everywhere in between.

I usually stay away from legal questions when it comes to my podcast and other Get Hired outlets, like my newsletter. The reason is that a lot of laws vary from one state to another. Or in some cases, from one city to another. Yet, it's important to know some basics when looking for work. That way, you know what to expect, what is and is not allowed and how to separate fact from fiction. For example, you've probably been told that it's illegal for an employer to ask your age during an interview. Well, that's not exactly true. We're about to get into that and more, with Austin Kaplan, who is an employment and civil rights attorney based in Texas. To kick things off, let's hear a bit about Austin's work.

Austin Kaplan: What people need to know is that your gut is often times right, and if your gut is that I'm not being treated equally in the workplace because of some protected category, that may be time to call a lawyer. It may be time to look into whether or not your rights are being violated. We regularly tell people, "Know your rights and make sure your rights are being respected."

Andrew: We should also probably say that employment law differs a lot from city to city or state to state, so you'd want to check wherever you're located because there are things there that are unique to Texas and things like that, right?

Austin: That's absolutely right and there's a great list of employment lawyers available at nela.org , N-E-L-A.O-R-G, to find an employment lawyer nearest you. Federal is the same across the country, but there are a bunch of different more protective state and local laws that may give you additional rights. You always want to check to make sure you know what's going on in your place. For remote workers, you want to know what's going on where you are physically working from and where you are reporting to. But start somewhere, and know your rights, and make sure that your rights are respected at work.

Andrew: Let's dive into some of these. The one that often comes up, and I think this comes up every week for me, which is basically ageism during the job search. We know it exists because we can see it in the data at a population level. But a lot of times, people will say it's illegal for them to ask your age during an interview, and they can't ask about your family, and things like that. What is the actual regulation around that? Because from my understanding, it's not necessarily they can't ask you, it's just they can't use that information against you, right?

Austin: You are absolutely right. There's no law or regulation that says you cannot ask about an applicant's age. Certainly, in the real world, folks have become adept at trying to avoid walking into an ageism trap. The data is such that, at some point, your experience works against you in the application process. Isn't that sad though, that we all think that? There's really only one that everyone thinks is funny. It's age discrimination. Everyone's happy to tell jokes about it and play around with it.

The other thing about age discrimination that's interesting is it's probably the only area of discrimination that all of us, if we continue to stay in the workforce and keep working, will find ourselves eventually a member of this group. It's something we all need to be cognizant of.

I've been involved in some pretty large scale age discrimination against large tech employers and other notable things. It's an interesting one. If you can prove it, jurors will enforce it, to come after ageist employers. Proving it up though, is in my experience, maybe a step harder than other types of discrimination. I don't know why. I hope that we can do more as a society, to make it as serious as it is.

Andrew: Yeah. Also, because a lot of times, I think people are told it is a high bar to prove this because it could be an implicit bias, where it's just an assumed, "Okay, I'm not going to give this person a job," so it's not actually written down anywhere, or on paper that would point to discrimination itself, other than just an unwritten understanding.

Austin: Exactly. Proving any kind of discrimination in the hiring context is extremely challenging because you really don't have the facts. Unless somebody shares with you, "Well, we're not hiring you because of your age." Where we see it happening at scale are programs that target early professional hires and things like that. Programs that target new college grads only, that bar non-new college grads from entering. Things that are really closely tied to age. We've seen some enforcement in those spaces. But on a one-on-one, it is really, really, really, really hard.

To prove it up, from the lawyer's chair, you essentially need to be able to show that you were so much more highly qualified than the candidate that they selected, and the only reason that only stands out as to why you were not selected was your age. You have to get into the intent, into the mind of the decision maker who made the hiring decision. In the hiring context, unlike the firing context, you just don't have a lot of data as an applicant. How do you get that data?

Essentially, age discrimination's super interesting. It's illegal under Federal law, it only applies to employers who have 20 or more full-time employees. This is the Federal law. The damages work a little bit differently, too. If you prove up a case of age discrimination, you can recover your back pay, so the amount of money you would have made if they hadn't, let's say fired you because of your age essentially, in what's called liquidated damages. What you can't get is compensatory damages, so pain, suffering, mental anguish, things like that, or punitive damages to punish the employer for breaking the law intentionally.

In age cases, for it to be something you're going to bring to court, it really works well if it's a career-ending maneuver. You've been a company for a long time, they fire you, you have specialized knowledge and you can't get another job because of what happened. That can be super significant, in terms of the amount of money at stake. But if you find another job immediately, then you can't get pain and suffering, mental anguish, or punitive damages.

Andrew: Oh, interesting. Also, something else that pops up quite a bit during hiring, and I think people are more aware of it now, which are non-competes. For people who maybe haven't encountered these, these are basically clauses or separate documents people might sign that say, "If you leave us as an employee, if you're fired or laid off, you can't go to one of our competitors or work at a competitor in this industry within a certain mileage." What is your guidance on non-compete clauses?

Austin: Non-competes are real. Employees, when they're thinking about making a change, need to be concerned, and ideally meet with an attorney or at least understand what they're dealing with before they do it. There are some states where non-competes are essentially barred, but there are some states where they are allowed to run free. Texas is one of those states. You just need to be aware, even if you're working remote for a company, that you can be bound by a non-compete and you need to worry about its scope when you're making your next moves.

You're right, non-competes generally are restricted by what I would call three things. First, is the time of the restriction, how long can't you compete. Usually, two years is the maximum that you can have. The second is the geographic scope of the non-compete. Is it just within a 10-mile radius of where you were? Usually, we'll see that in medical practice cases. Is it the whole country or the whole world? Often times, non-competes are written in such a way that you're a software programmer at a major tech company, and your non-compete makes it so that you couldn't go and be a trucker driver or sweep the floors at any other tech company. Well, that's unrelated to what you were doing as a software programmer, the scope of restriction is over broad. In most states where non-competes exist, they're actually limited by law.

I'll give you the Texas story. Which is anyone can write a non-compete that says anything, but the non-competes can only exist and are only allowed as an exception to an antitrust law. Essentially, courts will look at them and determine whether or not they are reasonable, by looking at these three factors. If they're unreasonable, if the scope of activities restricted is too large, the other side can't recover damages against you and also can't recover attorney's fees against you. New York courts, historically, have also said if you were laid off, if a company gets rid of you because they don't want you around anymore, it's going to be much harder and likely impossible for them to enforce a non-compete against you.

It always goes back to what is the reasonable restriction that the company needs to protect its goodwill and its investment in you for it to prove up that it can restrict you from going somewhere else. The classic story, of course, is obviously you don't want someone with the secret formula for Coke and the know-how to go to Pepsi and share it. But, the phone rings all day long at firms like ours, it's not folks at that level. Who is it? It's mid-level salespeople. It's mid-managers. We've had spreadsheet folks for logistics companies. We've had Krav Maga instructors. Roofers, hairdressers, you name it.

These are real, they can be very costly to get into a non-compete dispute. We always tell people if you think this is a risk, if you're worried about it, call a lawyer's first.

Andrew: What I liked too, that you mentioned, is that this isn't just people who work at tech companies, it's roofers, it's people who work in hair salons. Especially at that local level, you have employers who say, "Listen, I don't want you building a business here, and then all of a sudden, uprooting and opening up a shop next door." So really, across the spectrum of careers and industries, you have to be aware of non-competes.

Austin: I think that's absolutely true, but for now, the best advice is don't pretend ... I see people on the internet say, "Non-competes, those are all unenforceable, don't worry about it." Do not take advice from the internet on these things. I've seen people take that advice, and then they come to us and it's actually worse than it would have been if they had come earlier.

Andrew: We'll be right back with Austin Kaplan.

Andrew: We're back, with Employment and Civil Rights Lawyer, Austin Kaplan. The other thing I wanted to ask too, and this is something that I think people have unfortunately become more aware of over the past several years, and that is rescinded job offers. We've seen the economy can take a sharp turn very quickly. Do people have a recourse if they quit their job and they're ready to start, and all of a sudden they get a notice because of changing economic situations, we will not be actually filling this role? What is your advice to people in that situation?

Austin: Yeah, great question. Can you sue your employer if they take your job offer off the table after you've made this massive commitment? Here's the shocking truth for Texas. The shocking truth in Texas is that if you're dealing with at-will employment, which almost everyone is, there is almost no recourse in that situation. I mean, it's shocking because imagine the commitment that you're making. At-will employment means you can quit anytime with no notice, and they can fire you, or lay you off, or pull your job offer at any time with no notice for good reason, bad reason, or no reason at all, as long as it's not an illegal reason. But if there's just bad business reasons, bad planning causes companies to pull your offer, Texas has said in an at-will situation, the maximum recourse you might have is just to get basically your moving and out-of-pocket expenses back. If you've got a contract, things are different. If you have an executive agreement, think about doctors, and some lawyers, and executives, there may be something in the contract that's helpful.

That's the story in Texas. Some other states may have some more protections.

Andrew: Yeah. Also, the only really recourse that is solidly in there would be if you have a contract with them. I know, during the pandemic, people had been saying, "Make sure you get this added to some of the acceptance letters," because they just wanted that extra protection. I don't know how successful they were, but they had that in the front of their mind because they had heard so many stories at that point, about people who had their offers taken away.

Austin: Yeah. One other way to do this that we've advised people on is if you're in a position of a lot of leverage, so what I would tell folks is you always want to, ideally, have more than one offer in hand so that you have leverage to negotiate against both offers to get the best possible package you can. Where you have the most leverage is when you're in that negotiation process, you know they want to make you the offer, you haven't accepted yet, and they really want you to say yes and get hired. That's where you really want to press your leverage for your pay, and for any other benefits that you can get.

One benefit that you might look into, if you're in a software programmer role, or other highly sought after roles, is a signing bonus. That can help, if you get the signing bonus and it's paid or pre-paid, and then the offer is pulled, at least you have some automatic income to cover your expenses during the period of time when you're job searching once again. If you can get things baked into your offer letter, pre-paid, that's a better place to be.

Sometimes, we can still, even without the law on our side, negotiate if offers are pulled, for some kind of severance. Better companies have offered that.

Andrew: Yeah. Also, because even though sometimes companies are those faceless entities, there are also sometimes just people behind there and they understand what they've done. You always hope for the goodness of humanity.

Austin: We see lots of disputes, but I think the majority of things work themselves out with the goodness of humanity, and without the need to have a lawyer in-pocket to do it. Which is great. I think where people end up talking to a lawyer is when that fails or it's just not going to work out.

You definitely don't want to get into a longterm business relationship with people that you just can't work with or you find untrustworthy, or whatever the story is. The more you can do, as an applicant in the hiring process, to figure out who it is you're going to be working with and whether or not that's going to work out, the better. It's another reason why having multiple offers is a great place to be, because you can compare the vibes here and the vibes there. Honestly, the vibes are important. Because when the vibes are off, a year down the road, two years down the road, eventually you're going to be calling an employment lawyer when things don't work out and you get, the legal term is screwed over. Tough people are just tough to work with, and great people are great to work with.

I think that's another just gut check that people can take, when they're thinking about moving jobs. Do I really want to work with these people? Do I like these people? Do I fit with? Sometimes, I've advised people, honestly, to take a lower paid job, but it just seems like it's just going to be so much better.

Andrew: Yeah.

Austin: It's not all about the money. Sometimes it's the benefits, sometimes it's the freedom, sometimes it's the work-from-home, or sometimes it's the vibes. Do the thing that you love to do, with people you love to work with, and it will really pay dividends.

Andrew: Yeah.

Austin: Isn't it funny to hear a lawyer say that? But it is so true.

Andrew: It's so true because, in fact, I was talking to someone recently who was looking for a job. I just said, "I hope you don't mind me saying this, but you don't seem excited about this opportunity." They basically said, "I don't know." We looked up some reviews and things for the company, and it turned out that all the reviews were for that position that they were hiring for. It was basically, "You are not set up for success in this role." It was one of those things where the person just felt the vibe was off, and I basically said, "Sounds like you made up your mind that you don't want to go through with this." The gut, the vibes really paid off for that person because, if they took that job, I don't know if they would have succeeded in that role.

Then, before I let you go, it sounds like for most people, especially during the hiring process, you're going through a lot of different motions. But it seems like if they got through the hiring process, or maybe it didn't sit right with them, how things ended, or maybe they were ghosted, or something like that, if it really is bugging someone, that's the point to maybe reach out to an employment lawyer to say, "Hey, can I just run this by you?"

Austin: That's right. Many employment lawyers, we do it at our firm, will do consultations as well, just know your rights consultations. Sometimes it may be that the law isn't violated, or we think it might be but we don't really have the evidence, so here's where you can go to look for more. But yeah, if your gut just says this is wrong, it's worth reaching out.

I would say the other important thing to know about all these things is that there's almost always strength in numbers. It's probably not just you. If you can get other people that are affected, if you can gather that evidence and get it together, that can sometimes make a case work out. If you're facing an issue currently at work or you're facing a hiring issue, see if you can figure out if this is happening at a bigger scale because that's one of the things that we'll always ask. "Is it just you? Was it something about you individually, or is it everyone in their 50s and no one's getting a second round interview at this company?" Hard to get that evidence together, I know it, but not impossible.

Andrew: Yeah, yeah. I know I've heard cases of people who say, "I feel like I was taken advantage of during the hiring process with the free projects that I had to do," or things like that. I've seen people online who will talk about this, and then you'll see in the comments people will say, "Oh, they did the same thing to me. They did the same thing with that." Sometimes, you can find those people out there.

Austin: That's true and it's a great point. Free projects in the hiring process is something that makes me unreasonably angry. If employers are having you and other applicants do productive work that they are using in their company during the hiring process, they have to pay you for it. Full stop, no questions asked, that is what the law says. If you think about it, you know it to be true. If you're painting someone's fence for work, you've got to get paid for it. That's the way it works, it's the Fair Labor Standards Act. If they're having you do projects just to test your acumen or test your ability, that's a different story. They're not going to use it outside the hiring process. But, I have heard stories of companies using the hiring process is basically a way to get free work done, and that is absolutely not allowed.

Andrew: Yeah, definitely. Thank you so much, Austin. I really appreciate your time with us. I think there's a lot of job seekers that are probably going to be happy, and maybe not so happy, to hear some of this, but I appreciate your time.

Austin: Thank you.

Andrew: That was Austin Kaplan, who's an employment and civil rights lawyer based in Texas. Remember, it's up to you to put our advice into practice. Still, you always have a community backing you up and cheering you on. Connect with me and the Get Hired community on LinkedIn to continue the conversation. Also, if you liked this episode, please take a moment to leave us a rating on Apple Podcast. It helps people like you find the show. Don't forget to click that follow, subscribe, or whatever other button you find, to get our podcasts delivered to you every Wednesday, because we'll be continuing these conversations on the next episode, right here, wherever you like to listen.

Get Hired is a production of LinkedIn News. This episode was produced by Alexis Ramdaou. Assaf Gidron engineered our show. Joe DiGiorgi mixed our show. Dave Pond is head of news production. Enrique Montalvo is our executive producer. Courtney Coupe is the head of original programming for LinkedIn. Dan Roth is the editor-in-chief of LinkedIn, and I'm Andrew Seaman. Until next time, stay well and best of luck.