Employment law issues to watch closely when hiring in the U.S.

There are two main reasons Korean companies struggle with the U.S. hiring process.

First, legal regulation starts at a different point.

In Korea, the hiring process itself relatively rarely leads to legal disputes, but in the U.S., legal liability can already arise at the following stages.

• The wording of job postings
• Interview questions
• The reasons an applicant is rejected
• How the terms of employment are offered

In other words, disputes over discrimination can arise even before hiring is complete.

Second, "good intentions" are not a legal defense.

In Korea, questions asked out of concern for organizational culture or personal consideration may be accepted as natural, but in the U.S., certain questions can themselves be read as evidence of discrimination.

For example, questions about

• Marital status
• Plans to have children
• Age
• Health

can give rise to disputes even if they have nothing to do with the actual hiring decision.

In the U.S., job postings are also subject to legal scrutiny.

The following kinds of wording in particular call for caution.

(1) Wording that suggests age or gender

For example,

• "Young and energetic"
• "Recent graduate preferred"
• Job descriptions that suggest a particular gender

may be argued to be grounds for discrimination regardless of the actual intent.

(2) Qualifications not directly related to job performance

Requiring qualifications that are not directly related to the job may be interpreted as a criterion meant to exclude certain groups.

Examples:

• Unnecessary physical requirements
• Vague English proficiency requirements

(3) Pay range disclosure requirements

Some states have recently begun requiring that job postings state the pay range, and when hiring in multiple states at once, each state's rules must be reviewed.

The interview stage is where the most disputes actually arise.

U.S. employment law protects certain personal traits as protected characteristics, and if it is alleged that any of them influenced a hiring decision, the matter can turn into a discrimination claim.

Typical protected characteristics include the following.

• Age
• Sex and pregnancy
• Race and national origin
• Religion
• Disability
• Marital status, among others

Accordingly, questions like the following can cause problems even if they have nothing to do with the actual hiring decision.

• "Are you planning to have children?"
• "Are you married?"
• "We have a lot of customers of a particular nationality. Is that okay with you?"

In practice, the safest standard is clear.

Every interview question should focus solely on whether the applicant can perform the job.

It is in fact very common for a single offhand remark during an interview to be combined with a later rejection and turned into a discrimination claim.

In Korea, the employment contract is often seen as the core document governing the employment relationship. In the U.S., however, the employment relationship is generally built around an offer letter and an employee handbook rather than an individual employment agreement.

In practice, the following structure is typical.

• Offer letter: sets out basic terms such as position, pay, and start date
• Employee handbook: company policies, work rules, disciplinary procedures, and the like

Because the basic principle of U.S. employment is at-will employment, it is common not to specify the term of employment or the grounds for termination in detail in a contract for ordinary employees.

On the contrary, drafting a detailed employment contract can unintentionally be read as guaranteeing employment or limiting termination, and in a dispute the contract language may take priority over company policy.

In practice as well, most companies keep the employment arrangement itself simple and manage their operating standards consistently through the handbook.

An important area that needs separate review in the hiring process is nondisclosure agreements (NDAs) and non-compete clauses.

Policy on non-compete clauses has been changing quickly in the U.S. In 2024, the Federal Trade Commission (FTC) pursued a rule restricting non-compete clauses nationwide, but a federal court set it aside as exceeding the agency's authority, and it is not currently in effect.

Even so, the attempt itself is seen as a sign that policy toward non-compete clauses is shifting. At present there is no uniform federal standard, and the fact that enforceability depends on state law has become even more important.

In practice, the following points matter.

• NDA, IP assignment, and non-solicitation clauses are still widely upheld
• Non-competes are likely to be invalid if their geographic area, duration, or scope of work is excessive
• Enforceability may vary depending on the state where the employee works or lives

Non-compete clauses should therefore not be included as a formality; they are more likely to be upheld when they are designed around the trade secrets or customer relationships the company actually seeks to protect.

The following are simplified examples of types of disputes that frequently arise in practice.

Example 1: An interview question that led to a discrimination dispute

At one company, an interviewer asked an applicant about plans to have children, and when the applicant was later rejected, a discrimination complaint was filed. Even though the question had nothing to do with the actual hiring decision, the company had to settle to resolve the dispute.

Example 2: A dispute that began with the wording of a job posting

In another case, a job posting included the phrase "a young employee who can work fast," and a rejected applicant alleged age discrimination, leading to a dispute. Even though there was no discriminatory intent in the actual hiring process, the wording itself became the starting point of the problem.

Many of the problems that arise in the U.S. hiring process stem not from intentional violations but from not fully understanding the differences in systems and culture.

For Korean companies in particular,

• A hiring culture centered on organizational fit
• An interview style in which personal questions feel natural
• An expectation of long-term employment

can actually become legal risks in the U.S.

In the U.S., the hiring process itself is already seen as part of a legal process, and every step before the hiring decision can be reviewed after the fact.

Hiring in the U.S. is therefore not simply a matter of selecting people; it can be seen as the stage at which a company's internal policies and legal structure are first exposed to the outside world.

For that reason, designing hiring procedures with an understanding of both the Korean and U.S. legal structures and workplace cultures is the most practical way to prevent future disputes.

Related U.S. practices: Employment & Labor