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Employment applications—almost every
employer in the country uses them. They can seem innocuous, but they contain a
number of minefields of which employers should be aware.

A general theme of federal and
state laws, regulations and guidance is that employers should avoid asking an
applicant questions that elicit information that cannot be considered in making
a hiring decision.

Below is a list of the top 10
mistakes to avoid in application materials:

Including
any disability-related or medical questions. Employers should steer clear of
questions related to whether an employee is disabled or has a medical
condition. Any such inquiry would violate guidance from the U.S. Equal
Employment Opportunity Commission (EEOC) and possibly the Americans with
Disabilities Act (ADA) and similar state laws. If an employer asks an applicant
such a question, the EEOC or a court may presume prohibited information was a
factor in hiring.

Not
including an at-will disclaimer. Employers
may want to inform applicants that the application is not intended to and does
not create a contract or offer of employment and state that, if hired,
employment with the company would be on an at-will basis and could be
terminated at the will of either party. This disclaimer is helpful to avoid any
claim that the application is an offer of guaranteed employment or to defend a
claim of breach of contract if the employee is not hired or is later
discharged.

Not
including a nondiscrimination statement. Employers may want to inform applicants
that the company is an equal opportunity employer (i.e., through an EEO
statement) and does not discriminate in hiring based on federally-protected
classifications (i.e., race, color, national origin, ancestry, religion, sex,
disability, veteran status, age [40 or over], or genetic information).
Employers may want to add any additional protected classifications under state
or local law (e.g., sexual orientations or marital status).

Requesting
graduation dates in the education section. Asking applicants for graduation dates
(usually in the education section of the employment application where it
inquires about degrees obtained) may lead to a finding of discriminatory intent
on the basis of age under the Age Discrimination in Employment Act (ADEA) or
state law—particularly if the employee’s graduation date has no bearing on the
qualifications for the position—as it enables the hiring manager to guess the
age of the applicant. It is appropriate to ask questions regarding the
experience of the applicant if it is relevant to a job qualification.

Asking
about arrests and convictions, without appropriate disclaimers. A number of states and local
jurisdictions expressly prohibit employers from asking about applicants’
criminal histories on employment applications (these are called “ban the
box” laws). EEOC guidance further recommends that employers not ask about
convictions on job applications, but, if they do, to limit their 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 on applications at all, because it reasons that the
fact that an individual was arrested is not proof that he or she engaged in
criminal conduct. The EEOC also has taken the position that an arrest record,
standing alone, may not be used to screen out an applicant, but an employer may
make an employment decision based on the conduct underlying the arrest if the
underlying “conduct makes the individual unfit for the position in
question.” Employers may want to use caution in this area.

Putting
a background check acknowledgement on the employment application. Under the Fair Credit Reporting Act
(FCRA), the disclosure of an employer’s intent to obtain a background check and
section must be in a “stand-alone” document separate from the
application.

Not
including language telling applicants how to request a reasonable accommodation to apply or participate in the
interview process. The ADA imposes a duty on employers to provide reasonable
accommodations to applicants during the application process to ensure equal
access to available positions. In light of this obligation, employers may
consider instructing applicants on how to initiate that process independent of the
employer’s online application system and hiring manager.

Asking
for a photograph. Guidance
from the EEOC prohibits employers from asking applicants for photographs. If
needed for identification purposes, an employer may obtain a photograph of an
applicant after the applicant accepts an offer of employment.

Asking
about marital or familial status. Asking
questions about an applicant’s marital status, the number of kids he or she
has, the ages of his or her children or dependents, or provisions for childcare
could be construed as discrimination on the basis of sex. Furthermore, in many
states, marital or familial status is a protected classification about which
employers may not inquire during the application process—similar to the
federally-protected classifications listed above.

Asking
about citizenship. The
antidiscrimination provision of the Immigration Reform and Control Act
prohibits employers from discriminating against an applicant because he or she
is not a U.S. citizen. The Form I-9, rather than an employment application, is
the appropriate forum to determine an applicant’s citizenship status. Rather
than asking about citizenship, employers may want to ask if an applicant is
legally qualified to work in the United States.

Conclusion

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.

Here at Converge HR Solutions, we offer a service called HR
Start. HR Start is a one-stop-shop for HR at an affordable price that includes
employee handbook, job descriptions, employment application, and an HR Hotline for
advice. For more information, visit our website at https://convergehrsolutions.com/
or directly at info@convergehrsolutions.com or
610-296-8550.

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