Tips for Employers When Drafting Employment Applications

By: George J. Theofanis

Employers trying to minimize risk of legal exposure must consider several critical issues when screening prospective hires, including drafting and reviewing employment applications. A job application is a vital part of the screening process and provides an organized way for the employer to collect information from applicants. But applications must be drafted to comply with all relevant federal, state, and local laws and so, by extension, contain several legal traps for the unwary. This article discusses some tips for employers to consider when drafting their employment applications to avoid some of these legal pitfalls.

Follow Federal and State Laws

Ensuring the application is legally compliant and follows best practice requires the company to carefully review federal law and the state laws for each state in which they conduct business. For example, if the employment application includes a criminal history inquiry, the company should tailor such an inquiry to its specific needs by following both federal and state guidance on criminal background checks.

Under federal law, the Fair Credit Reporting Act (FCRA) sets out the procedural requirements for conducting employee background checks using a third party. Employee background checks are referred to as “consumer reports” under the FCRA. If conducting a background check, the employer should carefully review the FCRA's procedural requirements. Failing to comply with the FCRA’s procedural requirements can result in the imposition of civil and statutory penalties. In addition, employers should become familiar with applicable state and local laws and requirements on background checks.

The company should also carefully review state law to ensure all necessary state law disclaimers are included in the application when inquiring into an applicant’s criminal history. Depending on the state, criminal convictions do not always result in an automatic disqualification of an applicant from the position. In fact, many states now prohibit asking about criminal history in a job application, and the Equal Employment Opportunity Commission (EEOC) advises against including questions about criminal convictions in a job application. Therefore, employers with applications that ask a question about an applicant’s criminal history should proceed with caution and consult both federal and state law.

State law may also require that specific notices be included in the application. For example, in California, if an employer uses public records – without using the services of an investigative consumer reporting agency – pertaining to individuals’ character, general reputation, personal characteristics, or mode of living for employment purposes, the employment application must include a checkbox for applicants to waive their right to receive a copy of the public record (see California Civil Code section 1786.53).

EEO Statement

An employment application should include an Equal Employment Opportunity (EEO) statement. An EEO statement acts as a reminder to applicants who are protected from discrimination under the law and demonstrates that the company is an equal employment opportunity employer and does not discriminate based on a “protected characteristic” (i.e., categories protected under federal, state, and local laws), such as race, religion, sex, and disability.

Personal Information

The employment application should include questions seeking personal information that is relevant to the requirements of the position. The employer may also want to ask questions regarding whether the applicant has any family members to evaluate whether a conflict of interest exists. But employers should avoid requesting any personal information unrelated to the position that falls under a protected category under federal or state law, such as the applicant’s marital status, sexual orientation, or age. For example, the application can ask about an applicant’s educational history but should avoid asking questions that identify the applicant’s approximate age (e.g., date of high school graduation).

In addition, an employer may also request that an applicant provide a list of references or work history, including contact information from prior employers. However, many state and local laws may prohibit employers from asking about pay history on an employment application. Hence, employers should proceed with caution when drafting questions regarding a prospective applicant’s employment history in an application.

Relatedly, employers should also ensure that any question related to visa requirements are asked in a non-discriminatory manner and do not discriminate based on citizenship status or national origin. Any applicant’s citizenship status can be determined through a Form I-9. Any questions regarding citizenship should only address whether the applicant is legally qualified to work in the United States, not the applicant’s citizenship or national origin.

Authorizations and Signatures

The employer should make sure that any authorizations the applicant needs to sign are included in the employment application. For example, if a drug test or physical exam is part of the applicant screening process, then an agreement to submit to a post-offer drug test or pre-employment physical exam should be included.

The application should also include an attestation clause for the applicant to sign attesting that the information included in the application is accurate and that omitted or false information can lead to rejection of the application, and the company may take disciplinary action, up to and including termination.

The employer should also include an “at-will” statement above the signature line reflecting the employment relationship can be terminated at any time without notice by either the employer or employee, for any lawful reason. At-will employment is recognized in all states but Montana.

The employer should also consider stating the period for which the application will be under consideration.

Conclusion

As demonstrated above, employment applications allow employers to make specific requests regarding an applicant’s work and educational history, and personal information relevant to the position. But employers must be careful to avoid asking certain questions, particularly those that are unrelated to the position and seek information related to a protected characteristic. Employers with applications that ask a question about an applicant’s criminal history should also proceed with caution and consult both federal and state law. The application should also include any authorizations or documents that the applicant needs to sign as part of the application process. Indeed, a company must carefully draft the employment application and carefully review federal law, as well as the state laws for each state in which they operate, and consult experienced counsel for legal advice if needed.

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