Recruiting and Hiring Compliance for Remote Workforces

What state laws apply when hiring a remote worker who lives in a different state than our company headquarters?

Generally, the employment laws of the state where the remote employee performs work (their home state) apply. This includes wage and hour laws, paid leave requirements, discrimination protections, and termination regulations. Some exceptions exist where your headquarters state’s laws may also apply, particularly for recruiting practices like job posting requirements if you advertise in your state. Best practice is to comply with both states’ laws or apply the more protective law.

Do we need to include salary ranges in job postings for remote positions?

It depends on where you’re recruiting. States like California, Colorado, New York, and Washington require salary ranges in job postings, and these laws often apply to remote positions that could be performed in those states. If you’re advertising a remote position nationally, safest practice is to include salary ranges in all postings to ensure compliance across states with transparency laws.

Can we exclude candidates from certain states to avoid compliance complexity?

While not expressly illegal, excluding candidates based on state of residence raises several concerns. First, it may violate discrimination laws if the excluded states have demographics that correlate with protected classes (e.g., excluding states with large Hispanic populations). Second, some states like Colorado specifically prohibit excluding their residents from remote job opportunities. Third, it limits your talent pool and may violate your own EEO commitments. Better approach is to build multi-state compliance capability.

When can we ask about criminal history during the hiring process?

This varies significantly by state. Some states require waiting until after a conditional offer of employment. Others allow inquiry after the first interview or initial screening. About 35 states and many cities have “ban-the-box” laws restricting when and how you can inquire. Check the specific requirements in the state where the candidate resides and where your company operates, then apply the most restrictive timing.

Are we required to provide accommodations during the interview process for candidates with disabilities?

Yes. The ADA requires reasonable accommodations for qualified individuals with disabilities throughout the application and interview process. Common accommodations include providing interview questions in advance, allowing extra time, providing sign language interpreters, ensuring video conferencing platforms are accessible, or offering alternative interview formats. Accommodations are required unless they create undue hardship (significant difficulty or expense), which rarely applies to interview accommodations.

Can we use AI tools to screen resumes and applications?

Yes, but with important compliance considerations. AI screening tools must comply with anti-discrimination laws and cannot have adverse impact on protected classes unless you can demonstrate business necessity. Some jurisdictions have specific AI hiring regulations—New York City requires annual bias audits and disclosures, Illinois requires notice and consent for AI video analysis, and Colorado’s new AI Act (effective 2026) imposes comprehensive requirements. You remain liable for AI tool discrimination even if using third-party vendor.

What questions are we not allowed to ask during interviews?

Federal and state laws prohibit asking about: age, race, color, national origin, religion, sex, pregnancy, marital status, children or childcare arrangements, disability or health conditions, genetic information, arrest records (in many states), and bankruptcy. Also cannot ask about salary history in states with salary history bans. Focus interview questions on job qualifications, experience, skills, and ability to perform essential job functions.

How long do we need to keep job applications and interview notes?

Federal law requires keeping applications and hiring records for at least one year from the hiring decision date (two years for federal contractors). Many states have longer requirements. Best practice is retaining for at least two years. For hired employees, retain through employment and typically one year after termination. Longer retention may be required if litigation or EEOC charge is filed.

Can we conduct background checks before making a job offer?

It depends on state law. Some states’ ban-the-box laws require waiting until after a conditional offer. Other states allow earlier background checks but restrict criminal history inquiries until later stages. Federal law (FCRA) doesn’t prohibit pre-offer background checks but requires disclosure and consent. Safest practice is to wait until after extending a conditional offer, particularly for positions in ban-the-box states.

What’s the difference between a conditional offer and a final offer?

A conditional offer is extended subject to satisfactory completion of certain requirements such as background checks, reference checks, drug testing (where permitted), or employment verification. A final offer has no contingencies and creates a binding employment contract. Always make offers conditional on satisfactory results of any remaining screening, and clearly state the conditions in the offer letter.

Are we required to verify work authorization for remote employees?

Yes. Form I-9 is required for all U.S. employees regardless of work location. For remote employees, you must physically examine original identity and employment authorization documents within 3 business days of the first day of employment. Options include having the employee come to your office, sending a representative to the employee’s location, or using an authorized representative in their area. Check current DHS guidance for any temporary alternative procedures that may be available.

Can we ask candidates if they have reliable internet and a home office for remote work?

Yes. You can ask about technology requirements and work environment necessary for the job. However, be careful not to inadvertently discriminate. Requiring high-end technology or ultra-fast internet may have socioeconomic disparate impact. If a candidate indicates they lack required technology, consider whether you can provide equipment or accommodate their limitations. Also consider whether such requirements might disadvantage candidates with disabilities.

What are our obligations if a candidate requests an accommodation during hiring?

You must engage in an interactive process to understand the limitation and identify effective accommodations. This may include requesting medical documentation if the disability and need aren’t obvious. Provide reasonable accommodations (alternative application formats, interview scheduling flexibility, accessible technology, etc.) unless they create undue hardship. Document the interactive process, accommodation provided, and any reasons for denying requested accommodation.

Can we check candidates’ social media before making hiring decisions?

Legally you can view publicly available social media, but it creates discrimination risks. Social media reveals protected characteristics like age, race, religion, pregnancy, and disability. Viewing this information before hiring decisions makes it difficult to prove these factors weren’t considered. Best practices: delay social media review until after conditional offer; use third-party service to filter protected information; have different person review social media than person making hiring decision; document legitimate reasons for any adverse decision.

Do pay transparency laws apply if we’re not advertising in those states?

Potentially yes. If you’re hiring for a remote position that could be performed in states with pay transparency laws, many such laws require salary disclosure even if you’re not specifically targeting those states. For example, Colorado’s law applies to jobs that “could be” performed in Colorado, and similar language appears in other states’ laws. Safest approach is including salary ranges in all remote job postings.

What should we do if an applicant voluntarily discloses protected information during an interview?

Don’t pursue the topic or ask follow-up questions. Politely redirect to job-related topics. Document that the information was volunteered, not solicited. Ensure the information plays no role in the hiring decision. Train interviewers on how to handle these situations professionally and legally. The fact that information was volunteered doesn’t eliminate discrimination liability if it influences the decision.

Can we require candidates to have prior remote work experience?

You can if remote work experience is truly necessary for the position and job-related. However, consider whether this requirement might have disparate impact on certain groups—for example, older workers may have less remote work experience simply due to fewer years when remote work was common, potentially creating age discrimination concerns. Consider whether candidates could demonstrate transferable skills like self-management and independent work through non-remote experience.

Are we liable for discrimination by AI tools our recruiting vendor uses?

Yes. Employers are liable for discriminatory practices even when using third-party vendors. The EEOC has stated that employers cannot avoid liability by relying on vendor-provided AI tools. You should conduct due diligence on vendors, require evidence of bias testing and validation, monitor AI tool outcomes by protected class, and maintain human oversight. Include indemnification provisions in vendor contracts but understand you remain primarily liable.

Can we require candidates to turn on their cameras during video interviews?

While you can request cameras be on, mandatory camera requirements may create discrimination issues. Some candidates may be unable to use cameras due to disability, lack of technology, or inadequate internet bandwidth. Some may have privacy concerns about their home environment. Best practice is encouraging but not mandating cameras, offering alternative interview formats when requested, and ensuring interview process doesn’t disadvantage candidates who don’t use video.

What’s required in adverse action notices when we don’t hire someone based on a background check?

FCRA requires providing: (1) copy of background check report, (2) Summary of Consumer Rights under FCRA, (3) reasonable time (typically 5 days) for candidate to dispute inaccuracies before final decision, (4) after final decision not to hire, notice that adverse action was taken, (5) background check company name and contact information, (6) statement that screening company didn’t make the decision, (7) notice of right to dispute with screening company, and (8) notice of right to request additional free report within 60 days.

Can we ask why someone left their previous remote job?

Yes, you can ask about reasons for leaving previous positions as long as you don’t inquire into protected categories. Don’t ask questions that could reveal protected information like “Did you leave because of pregnancy?” or “Did you need to care for a sick family member?” Instead ask open-ended questions like “What prompted your decision to leave?” and let candidate provide information. If candidate indicates they left due to protected reason (disability, pregnancy, family care), don’t pursue further questions about the protected characteristic.

Are there special considerations for hiring international remote workers?

Yes, several major considerations: (1) If working in U.S., must verify work authorization through Form I-9; (2) Must comply with foreign country’s employment laws where worker is located; (3) Tax implications in both U.S. and foreign country; (4) Potential to create “permanent establishment” triggering corporate tax in foreign country; (5) Data protection laws (like GDPR) if accessing data in EU; (6) Export control restrictions if worker accesses controlled technology; (7) Time zone and communication challenges. Many companies use Employer of Record services to simplify international compliance.

Can we use salary history from references or background checks even if we can’t ask the candidate?

No. Salary history bans typically prohibit obtaining salary history through any means, including from references, background checks, or public records. You cannot circumvent the law by getting information indirectly that you’re prohibited from asking directly. Instruct background check vendors not to include salary information and inform references that you cannot accept salary history information.

What documentation do we need to defend against a discrimination claim?

Document every stage of your hiring process: (1) job description and qualifications, (2) job posting and where advertised, (3) applicant flow logs showing demographics, (4) screening criteria and consistent application, (5) interview questions and candidate responses, (6) evaluation scores for all candidates, (7) comparative assessment of finalists, (8) job-related reasons for selection, (9) business justification for any criteria with adverse impact, (10) accommodation requests and responses, (11) background check process and results. Maintain for at least 2 years.

Do we need to conduct adverse impact analysis on our hiring data?

While not legally required for all employers, adverse impact analysis is highly recommended and required for federal contractors. Regularly analyze your hiring data by protected class to identify whether any stage of your recruiting process has disparate impact. Use the four-fifths rule as initial screen. If adverse impact exists, be prepared to demonstrate the job-relatedness of the criteria causing impact and show no less discriminatory alternative exists. Regular monitoring allows you to address issues proactively.

Can we prioritize local candidates for remote positions?

While you can have geographic preferences for business reasons (time zones, occasional office visits, etc.), be cautious about how you implement this. Excluding entire states or regions may have discriminatory impact if those areas have demographic characteristics that correlate with protected classes. Document legitimate business justifications for geographic preferences, apply consistently, and don’t use geography as pretext for discrimination. Consider whether stated business needs could be met through alternative arrangements.

What are the risks of not complying with remote recruiting regulations?

Non-compliance risks include: (1) EEOC or state civil rights agency investigations and lawsuits, (2) Class action litigation if discrimination is systemic, (3) Back pay, compensatory damages, and punitive damages, (4) Attorney’s fees and litigation costs, (5) Government fines and penalties (e.g., FCRA violations, AI regulation violations), (6) Reputational damage and negative employer brand, (7) Difficulty attracting top talent, (8) Shareholder and board scrutiny, (9) Loss of government contracts for non-compliance. Prevention through robust compliance program is far less costly than remediation after violations.