An employment application, alone or in conjunction with accepting resumes, is a helpful tool used by many businesses to screen applicants and to find qualified employees. However, developments in employment law could result in inadvertent use of an application which could expose a business to charges of discriminatory hiring practices or even unintentionally implying an employment contract which could mean monetary damages upon termination of the employee.
Standard applications ask for things such as general personal information, education, work experience, skills, salary requirements, references, criminal history, and military experience. But even seemingly harmless questions or questions improperly phrased could lead to charges of discrimination.
So, you may ask, why even risk using an employment application; why not just rely on resumes? In some professions, applications are, in fact, considered unnecessary and the interview process adequately supplements information missing from a resume. However, that is not always the case. While resumes provide valuable information about the applicants, they may not cover everything a particular employer will need to know in order to select the best applicant for the job, and, more importantly, to avoid “negligent hiring” claims.
So how does a business customize its employment application to be an effective device and still protect against liability? A legal review of your employment application may be the answer.
One of the fundamental principles an employer should observe is that each and every inquiry should have a legally legitimate reason for being asked and that the attribute sought is a bona fide occupational qualification (BFOQ). To qualify as a BFOQ, the job qualification must relate to the essence or to the central mission of the employer’s business; it must affect an employee’s ability to perform the actual functions of the job. Keeping this principle in mind will assist an employer in composing proper application inquiries.
Here are a just few examples of employment application dos and don’ts:
- Aliases/Maiden Names. Don’t ask for the applicant’s maiden name, title, or marital status as each may raise gender discrimination issues. However, to enable a company to perform a background check, aliases may be requested. An application could ask if the applicant has ever used another name and request that name. It also could inquire whether there is any other information about a change of name which is necessary to check work and educational records.
- Age. While you should avoid asking the applicant’s age or date of birth, you may ask if the applicant is below the age of 18 for purposes of child labor laws. Citizenship. Due to federal laws, an employer may not ask “Are you a U.S. citizen?” or questions relating to national origin. However, you may ask whether the applicant is legally authorized to work in the United States.
- Criminal Records. Although inquiring into arrest records is not permissible, an employer should inquire into conviction records in order to protect against negligent hiring claims. Beware: This is a sensitive area. If asked, the question must be accompanied by a statement to the effect that a conviction itself does not constitute an automatic bar to employment, and that the seriousness of the crime and the date of conviction will be considered by the employer. The employer has the option to avoid asking the question altogether and simply state that it intends to have a criminal records check performed. Pennsylvania law regulates the manner in which criminal background checks of job applicants are obtained, and how the information may be utilized. For example, the employer must notify the applicant in writing if a decision not to hire is based in whole or in part upon the applicant’s criminal record.
- Credit Checks. If the employer wishes to obtain a credit check report to investigate the applicant’s character, general reputation, personal characteristics, and lifestyle, it must comply with the federal Consumer Credit Protection Act which includes specific notification and consent requirements.
Other considerations include physical, psychological, and drug testing, medical questions, and maintaining job applicant records; and even this is only a partial list. As you can see, there are many issues an employer must address when customizing its employment application. A cautious, deliberate approach is advised.
— Denise Ciampitti