Employment Service Guide – C-400: Job Postings That Violate Federal or State Law

C-401: About Job Postings That Violate Federal or State Law

Boards must be aware of the following.

Job postings that include certain types of hiring criteria may violate federal or state law.  These include job postings that:

  • Have union or nonunion specifications
  • Predesignate the job seeker to be referred
  • Contain discriminatory specifications or have citizenship specifications
  • Involve a fee to the job seeker for filling a job
  • Violate child labor laws by allowing youth (ages 14–17) to be referred
  • Are below the prevailing wage or are substandard job postings
  • Fill a job vacated due to a strike or lockout

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C-402: Union or Nonunion Specifications

Boards must be aware that job postings specifying membership or non-membership in a labor organization as a condition of employment may violate federal or state law.  

Unions and labor organizations are subject to Texas Right to Work laws, which make a job posting illegal if there is an agreement between an employer and a union that requires union membership immediately or after a certain period of time.  An agreement that requires individuals to pay union membership dues even if they are not members also is illegal.

The Texas Right to Work Law does not apply to:

  • A railroad or “carrier,” as defined in the Railway Labor Act
  • A federal enclave or any type of federal installation
  • Work performed outside the state of Texas

For additional information, refer to:

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C-403: Predesignating the Job Seeker

Boards must ensure that Workforce Solutions office staff do not take action on a job posting in which the employer requests that Workforce Solutions office staff refer a certain job seeker.  The only exceptions to this are agricultural and agricultural-related job postings for a specific crew leader or worker (20 Code of Federal Regulations Part 651).

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C-404: Discriminatory Specifications

Boards must be aware that federal law and Employment Service policies prohibit selecting and referring job seekers on the basis of any discriminatory specifications.  This includes job postings with a citizenship requirement, unless specifications are based on a legal requirement for workers in certain jobs or situations.  (Many jobs in federal, state, county and municipal service are by law available only to U.S. citizens.)

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C-405: Charge for Filling a Job

Boards must ensure that Workforce Solutions office staff do not take action to fill a job posting that would result in a placement fee for bringing the job seeker and employer together.  However, there are certain acceptable preemployment costs to the job seeker, such as:

  • A physical examination (under Americans with Disabilities Act guidelines, this examination may only be performed after an offer of employment is made)
  • Usual and customary licensing fees or certifications

In these instances, Boards must ensure that:

  • The cost is reasonable and customary for that workforce area
  • The fee has supervisor/manager approval
  • The information regarding the preemployment cost is specific and listed in the job posting
  • The details of the cost are reviewed with the job seeker before contact with the employer

Note:    Application fees, purchasing kits and work-from-home plans are not acceptable.

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C-406: Referring Youth

Boards must ensure that Workforce Solutions office staff make all youth job posting contacts in accordance with federal and state laws relating to school attendance and child labor standards.  [See Texas Labor Code, Chapter 51 (Texas Child Labor Law).]

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C-407: Substandard Job Postings

Boards must ensure that Workforce Solutions office staff do not call in or refer job seekers on substandard job postings that offer wages, hours or working conditions that are substantially less favorable to the job seeker than those existing for similar work in the area.  If discussion with the employer fails to result in a change to the job posting, Boards must ensure that Workforce Solutions office staff

  • Inform the employer that:
  • Refer the job posting to the appropriate supervisor/manager to ensure that uniform decisions are made

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C-408: Labor Disputes

Each Board must designate a local workforce/unemployment insurance (WF/UI) coordinator to be responsible for communicating with the state WF/UI coordinator when Workforce Solutions office staff become aware of a labor dispute.

To notify the U.S. Department of Labor (DOL), and to prevent any job referrals on job postings impacted by a labor dispute, Boards must ensure that local WF/UI coordinators follow the steps below when a labor dispute affects a job posting:

  1. Verify the existence of the labor dispute, when the Board or Workforce Solutions office staff become aware of a labor dispute that involves a work stoppage.
  2. Place any current job postings for the affected vacancies in “hold” status.
  3. Determine whether the labor dispute impacts any other vacancies posted in WorkInTexas.com, and if so, place those vacancies in “hold” status.
  4. Notify the state WF/UI coordinator of the labor dispute using the Report of Labor-Management Disagreement form (WF-41)MS Word.

Boards must be aware that the state WF/UI coordinator will forward the information to the DOL Regional Office.

Additionally, Boards must be aware that TWC staff will lock the employer’s account if there are any affected job postings, and the employer will be unable to access his or her WorkInTexas.com account.  (However, Workforce Solutions office staff will be able to access the employer’s account.)

Boards also must ensure that:

  • The employer is notified that WorkInTexas.com cannot list a job posting for vacancies affected by the labor dispute
  • Workforce Solutions office staff assist the employer, if requested, in listing job postings for vacancies that are not related to the labor dispute

Further, Boards must ensure that Workforce Solutions office staff do not make job contacts (referrals) on job postings or job develop job seekers in a manner—with contacts to temporary help firms, professional employer organizations (PEOs) or staff leasing companies—that would aid directly or indirectly in the filling of a job opening that is vacant because:

  • The former occupant is on strike
  • The former occupant is being locked out in the course of a labor dispute
  • The job opening is otherwise at issue in a labor dispute involving work stoppage

Boards must ensure that Workforce Solutions office staff:

  • Provide to all job seekers referred to jobs not at issue in a labor dispute the Job Seeker Notice of Labor Dispute form (E-12)MS Word , which explains:
  • Retain a signed copy of the Job Seeker Notice of Labor Dispute form

Boards must ensure that Workforce Solutions office staff do not accept or work existing job postings from temporary help firms, staff leasing companies or PEOs for positions at issue in a labor dispute.  

Boards must be aware that, if TWC becomes aware of a labor dispute before the Board, the state WF/UI coordinator will:

  • Verify the existence of the labor dispute
  • Notify all appropriate local WF/UI coordinators of the labor dispute and which occupations are affected

Form E-12, Job Seeker Notice of Labor Dispute, and Form WF-41, Report of Labor-Management Disagreement, are available on the Intranet (the Intranet is not available to the general public) under Employment Services Forms.

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C-409: Employment Scams

Boards must be aware of the potential for fraudulent employment scams in WorkInTexas.com, disguised as legitimate employer-posted job opportunities that are usually entered by self-service users.  Boards must be diligent in their review of all new job postings, looking for indicators of potential fraudulent activity.  Indicators include, but are not limited to, employers or postings that:

 

  • Require a job seeker to create an Instant Message account to conduct an interview
  • Require a job seeker to provide bank account/check routing information before starting work
  • Require a job seeker to cash a check from the employer before starting work
  • Require a job seeker to contact the employer at an email address from a free email provider, such as Gmail, Yahoo, AOL
  • Require a job seeker to submit any kind of payment for equipment, licenses, certifications, starter kits, software packages, etc., before starting work or before the employer’s legitimacy has been validated
  • Claim to hire a job seeker sight unseen or without validating credentials

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