Almost every employer in the country uses a form of employment application to screen prospective hires. While they may seem innocuous, these forms often contain a minefield of traps employers must be aware of or risk legal liability. A general theme of federal and state laws is that employers should avoid asking an applicant questions that elicit information that cannot be considered in making a hiring decision. Below are the top 10 mistakes to avoid in application materials:
1. Including medical questions. Steer clear of questions related to whether an employee is disabled or has a medical condition. Such inquiry would violate guidance from the U.S. Equal Employment Opportunity Commission (“EEOC”), the Americans with Disabilities Act (“ADA”) and similar state laws. Asking such questions allows the EEOC or a court to presume prohibited information was a factor in hiring.
2. Omitting at-will disclaimers. Make sure the application states it does not create a contract or offer of employment. Also tell them that, if hired, employment with the company is on an at-will basis and can be terminated at the will of either party. This will help avoid a claim that the application is an offer of guaranteed employment. It also helps defend against a claim of breach of contract if the employee is not hired or later discharged.
3. Omitting non-discrimination statements. Use an EEO statement to tell applicants the company is an equal opportunity employer that does not discriminate in hiring based on federally-protected classifications like race, color, national origin, ancestry, religion, sex, disability, veteran status, age, or genetic information. Consider adding a list of any additional protected classifications under state law (e.g., sexual orientations or marital status).
4. Asking dates of graduation. Asking applicants for graduation dates may lead to a finding of discriminatory intent on the basis of age under the Age Discrimination in Employment Act (“ADEA”) or state law because it allows hiring managers to guess the applicant’s age. It is appropriate to ask questions regarding the experience of the applicant if it’s relevant to a job qualification.
5. Asking about arrests and convictions without disclaimers. Several states expressly prohibit employers from asking about applicants’ criminal histories on employment applications. They’re commonly called “ban the box” laws. EEOC Guidance also recommends that you not ask about convictions on job applications. If you do, limit your inquiries to convictions for which exclusion would be “job related for the position in question and consistent with business necessity.” The EEOC discourages employers from asking about arrests at all on the grounds an arrest is not proof the person engaged in criminal conduct. The Commission finds that arrest records, standing alone, can’t be used to screen out an applicant. You can, however, make an employment decision based on the conduct underlying the arrest if that conduct makes the individual unfit for the position in question.
6. Including background checks. Under the Fair Credit Reporting Act (“FCRA”), the disclosure of your intent to conduct a background check must be contained in a “stand-alone” document separate from the application.
7. Omitting language about how to request a reasonable accommodation when applying or interviewing. The ADA imposes a duty on employers to provide reasonable accommodations to applicants during the application process to ensure equal access to available positions. Given this obligation, you may consider instructing applicants on how to initiate that process independent of your on-line application system and hiring manager.
8. Asking for a photograph. The EEOC prohibits employers from asking applicants for photographs. If needed for identification purposes, an employer may obtain an applicant’s photograph after she accepts an offer of employment.
9. Asking about marital or familial status. This is a bad idea. Asking about marital status, the number and ages of kids, and providing for childcare can be construed as discrimination on the basis of sex. In many states, marital or familial status is a protected class about which employers can not inquire during the application process. This is similar to the federally-protected classifications listed above.
10. Asking about citizenship. Provisions of the Immigration Reform and Control Act prohibits employers from discriminating against an applicant because she’s not a U.S. citizen. The Form I-9 is the appropriate method to determine an applicant’s citizenship status. Rather than asking about citizenship, you may want to ask if an applicant is legally qualified to work in the United States.
Employment applications are not only one of a company’s first contacts with applicants and new employees, they are also written documents that can later be used as evidence in an adversarial proceeding. Avoiding these common blunders can help employers maintain best practices for employment application materials