This column frequently reminds employers to regularly review personnel practices to stay up-to-date, even longstanding ones. Because this is the beginning of a new year, it is fitting to discuss the beginning of the employer-employee relationship: job applications.
If you do not already use an application form, we advise adopting a uniform application and asking all applicants to complete it. Everyone enjoys creative writing, and resumes have their place, but standardized application forms still have some benefits.
Why Use Applications?
Employers that do not use application forms offer different reasons. Some believe they are useless formalities. Others believe they are demeaning to applicants. Still others say that applications accomplish nothing that a resume or interview would not do without the waste of paper and storage. Although well intentioned, these employers are wrong. There are very compelling reasons to use employment applications.
Employment lawyers exhort employers to treat all employees and applicants consistently to avoid claims of unequal treatment, i.e., discrimination. An application requests the same information from every applicant, enabling an “apples-to-apples” comparison.
Applications include disclaimers and legal provisions that protect the employer. For example, the application may warn applicants that that employment is conditioned on references and contain a release. It may ask the applicant to acknowledge he or she provided complete and truthful information, and may warn of the consequences for failing to do so.
The application may facilitate obtaining information managers may have trouble asking about at an interview. These questions could include reasons for leaving prior employment, gaps in employment, whether the applicant is able to lawfully work, criminal convictions, and others. At the same time, the application provides managers with interview questions in a familiar, structured way. They also test the applicant’s attention to detail, comprehension, veracity and, to some extent, written communication skills.
Finally, applications create a consistent record of who applied for the job. This could come in handy for compliance with recordkeeping laws, or in case an employment law dispute arises over the failure to hire.
What’s Wrong with Resumes?
Resumes simply are not the same as applications. They highlight the information the applicant wants to share, sometimes in a narrative, sometimes organized by job categories or skills rather than dates of employment. Some applicants have multiple resumes for different industries or job types. Others may include improper information that would be unlawful to request in an application.
Resumes ordinarily do not contain promises that they are truthful. They also omit information that the employer may want or require. They of course contain none of the legal disclaimers or waivers that applications contain.
What Should Be Included in the Application?
Questions about job experience may include the job title, contact information for the prior employer, compensation history, dates of employment, and supervisor. It is important to require the applicant to list all experience in chronological order to minimize the risk of omission. It is appropriate to ask the candidate to disclose the reason prior jobs ended. It also is lawful to come right out and ask if the applicant has been fired.
Most applications ask for an education history. The name and address of the school, degree if any, a description of coursework, and honors are all fair game.
Employers include a number of legal disclaimers. Most employees are hired “at will.” An application may not guarantee “at will” employment, but it is a good start. Others may include the employer’s equal employment opportunity statement and consent and a release of the employer to conduct references.
Some applications include notice to the applicant regarding post-offer requirements (like background checks or drug testing). However, the Fair Credit Reporting Act and state law require separate disclosures and consent forms before the employer can conduct credit or background checks. Therefore, it is unnecessary to ask for a social security number on the application. It is not relevant before hire and employers and applicants alike are rightly concerned about identity theft.
The application lawfully may ask whether an applicant has authorization to work in the U.S. The application also may ask whether the candidate can perform the essential functions of the job, with or without accommodation.
Criminal Arrests and Convictions
Employers generally may ask applicants to disclose criminal convictions. In California, with limited exceptions, it is illegal to seek disclosure of convictions for misdemeanor marijuana-related offenses that are more than two years old. Employers with operations in more than one state should review questions about convictions, because state laws vary. Again with certain exceptions, it is illegal in California to ask applicants about arrests that did not lead to conviction.
It is important to know what not to include as well. There are a number of pre-employment inquiries that are prohibited on applications and at interviews.
It is no surprise that applications cannot include direct questions about an applicant’s race, sex, color, national origin or any other characteristic prohibited by law. However, there are less obvious questions deemed illegal as well because they reveal information that can be used to discriminate unlawfully.
For example, California’s Department of Fair Employment and Housing advises employers not to ask an applicant’s maiden name, because it could reveal unnecessary information about national origin and marital status. Asking an applicant’s birthplace is irrelevant to his or her qualifications for the job and may reveal national origin, race, or citizenship status. Similarly, asking for the dates an applicant attended high school would reveal the applicant’s age, as most people go to high school before they turn 18.
It also is improper to ask about clubs or organizations that unnecessarily reveal protected characteristics such as religious and political organizations. Employers also should not ask about union membership, as denial of employment because of union affiliation is a violation of federal law.
It is ordinarily improper to ask whether an employee is a “citizen.” Employers have to confirm eligibility to work in the U.S., but it is illegal to discriminate on the basis of citizenship or alienage. Similarly, if communication in English or another language is required for the job, an application can ask if an applicant is fluent.
Open-ended questions about military service may unnecessarily reveal an applicant’s age and national origin. However, some employers have affirmative action plans governing the hiring of veterans. Along the same lines, affirmative action obligations may require the employer to take into account protected status in limited circumstances. So, as with most things, exceptions to these guidelines could apply.
Most pre-hire questions about an applicant’s health are improper under the Americans with Disabilities Act and analogous state law. Other than the question described above regarding an applicant’s ability to do the job, questions related to medical conditions should not be included in a job application. Similarly, it is improper to ask whether an applicant made workers’ compensation claims at prior employers.
How long do employers need to keep applications? For employees, it is wise to keep a copy of the applications in their personnel files. Employees in California have a right to inspect the application, and obtain a copy if their signature is on it. For former employees, keep personnel files for at least four years after departure (which should cover the maximum applicable statute of limitations for employment-related claims).
For applicants who were not hired, retain the application forms for at least two years under California and federal anti-discrimination regulations. Those employers with affirmative action plans or obligations should follow the plan’s or agreement’s provisions. Also, some states may impose longer recordkeeping requirements.
Job applications can be valuable tools for an employer to evaluate and screen applicants. They are the first step in effective and lawful recruiting programs. There are, however, legal requirements employers should not ignore. What seems like a simple and generic form may be hiding potential legal liability.