ARE Daily | PcM #08 — Human Resources: Hiring, Employment Contracts & At-Will Employment

Quick Recall (from #07 — AIA Code of Ethics: Canons IV–VI)

An architect stamps and seals a full set of construction documents they reviewed only briefly — the actual work was done entirely by another firm. Which Canon and tier of obligation does this violate?

Canon IV — Obligations to the Profession, at the Rules of Conduct level (mandatory). Members must not sign and seal documents for which they do not have responsible control. This is one of the most serious violations in the Code, and one of the most frequently tested exam scenarios.

Today's Content

Human resources is one of the less glamorous corners of practice management, but it's loaded with legal exposure — and the ARE tests it accordingly. The core message across all of HR: ignorance of employment law is not a defense, and the consequences of getting it wrong range from costly lawsuits to federal investigations.

Hiring begins well before anyone is offered a job. The solicitation and interview process is already regulated. Equal employment opportunity laws make it illegal to ask a candidate about age, date of birth, marital status, national origin, race, or maiden name during an interview. The Civil Rights Acts of 1964, 1972, and 1991 prohibit discrimination based on sex, race, color, religion, or national origin. The Americans with Disabilities Act (ADA) prohibits discrimination based on disability. Most of these laws apply to firms with 15 or more employees — but the exam often tests the threshold, and best practice is to follow these guidelines regardless of firm size.

A proper hiring process includes review of the candidate's resume and work history, portfolio review, personal interviews, and reference checks.

Employment contracts formalize the relationship in writing. A contract spells out duties, compensation, benefits, termination procedures, and policies on outside work (moonlighting). Many contracts also include a noncompete clause (restrictive covenant), which may limit where a departing employee can work, whether they can set up a competing firm in the same geographic area, whether they can work for former clients, and whether they can share confidential firm information.

When no formal contract exists, the default is employment at will — either party can end the relationship at any time, for any reason, with no requirement to explain. This sounds simple but carries important constraints: an at-will employee still cannot be terminated for age, sex, religion, race, disability, or other protected characteristics. At-will protects the employer from wrongful termination claims in general, but not from discrimination claims.

Independent contractors (freelancers) are a distinct category. Hiring a freelancer avoids the need to withhold taxes, pay benefits, or establish an employer-employee relationship — but only if the person truly qualifies as an independent contractor. The IRS uses three factors to make this determination: behavioral control (does the firm control how work is done?), financial control (does the firm control the financial relationship?), and the nature of the relationship. Misclassifying an employee as a contractor is a significant legal and tax risk.

Today's Questions

1. During an interview, a candidate mentions they have two young children. The interviewer follows up asking about their childcare arrangements. What law does this potentially violate, and what employee threshold applies?
2. What is a noncompete clause, and what kinds of restrictions can it include?
3. An employee has no written contract with their firm. They are terminated without explanation. Is this legal? Are there any limits?
4. A firm hires a freelance CAD drafter who works in the office every day, uses the firm's computers and software, and works only for that firm. The firm classifies them as an independent contractor. What is the risk?

Next up: HR — Employee Benefits, Evaluations & the AXP

Answers from #07 — AIA Code of Ethics: Canons IV–VI

1. Architect stamps drawings they didn't review — Canon and tier? → Canon IV, Rules of Conduct (mandatory). Members must not sign and seal documents for which they do not have responsible control.
2. Difference between AIA sanction and state board action — can AIA revoke a license? → No. AIA sanctions are internal to the organization: admonishment, censure, suspension, or termination of membership. Only state licensing boards can revoke a license, under state law.
3. Canon VI has no Rules of Conduct — what does that mean practically? → Environmental obligations are aspirational only — members should pursue them, but there is no mandatory enforcement. No violation of Canon VI can result in AIA discipline.
4. Principal takes sole credit for work the project architect did — which Canon? → Canon V — Obligations to Colleagues. Giving credit to others for their professional work is a Rule of Conduct — mandatory, not aspirational.

Additional Quick Recalls

From #03 — Standard of Care What three conditions must all be met for an architect to be found negligent?

(1) A legal duty must be established between the parties. (2) The architect must have breached that duty. (3) The breach must have been the direct cause of the damage or injury suffered. All three must be present — absent any one of them, a negligence claim fails.

From #05 — Office Regulations What is the AXP, who administers it, and what is its relationship to the ARE?

The Architectural Experience Program (AXP) is administered by NCARB and documents structured professional experience under a licensed architect. It is a prerequisite for taking the ARE in most states. The AXP ensures candidates have real-world exposure across the required experience areas before sitting for the exam.

From #06 — AIA Code of Ethics What is censure, and how does it differ from a non-public admonishment?

Both are AIA disciplinary sanctions, but censure is public — a description of the violation is published in an AIA periodical. A non-public admonishment is the lightest sanction and stays private. Censure is more severe because it affects the member's professional reputation publicly.