What to Include (and not Include) in Your Employment Application
All HR professionals know that having candidates complete an employment application is a very important step in the hiring process. Employment applications not only collect employment history and education information on potential candidates, but can also be used to inform applicants of the company's equal employment opportunity and at-will employment policies. Even if an employer requests that candidates submit a resume for a position opening, the completion of an employment application at the interview meeting should be standard hiring practice for all companies.
However, you've got to know what to ask - and what not to ask as some well-intentioned queries may run afoul of anti-discrimination laws. Here are a few guidelines to follow.
Do: If federal law or the employer's state law requires a minimum age for employment, the employer can ask if the potential employee is at least the minimum age.
Don't: Ask for a birth date until the background check process begins or completion of tax and benefit plan forms.
Do: Ask if the applicant has graduated from high school and/or college and what degree was obtained.
Don't: Ask for dates of graduation as this may provide information that can be used to determine the age of a candidate.
Do: Some employers may track their applicants' race for affirmative action plans or compliance with the Uniform Employee Selection Guidelines, but this should be done apart from an application. This information should not be used in the selection process and is voluntary for the applicant.
Don't: Ask an applicant's race or color on the employment application. Ever. Period.
Do: An employer can inquire if an applicant is legally eligible to work in the United States and inform the applicant that proof of eligibility to work in the US must be provided if selected for hire.
Don't: Ask about an applicant's citizenship or country of birth as this can be perceived as discrimination on the basis of the individual's national origin.
Do: Ask the applicant if he will be available to work certain hours, weekends, holidays or overtime. You can also ask the applicant if they are able to perform certain functions of the job such as answering the phone, doing filing, etc.
Don't: In general, employers should avoid asking any questions about the amount of sick leave taken in past positions. Both the Family and Medical Leave Act (FMLA) and the American with Disabilities Act (ADA) prohibit discrimination and retaliation against applicants who have exercised their rights under those acts.
Do: An employer is permitted to make inquiries on the dates of military service, duties performed, rank during service and at the time of discharge, pay during service and at the time of discharge, training received, and work experience.
Don't: An employer should not ask an applicant the reason he or she discharged from the military or request to see military discharge papers, except when directly related to the job or to determine veteran's preference. Military discharge questions could result in obtaining medical disability information on an applicant, which is protected by the ADA.
Do: It is permissible for you to inquire whether an applicant has been convicted of any crimes. However, there are currently 10 states that have adopted ban-the box policies for public sector employers and 4 of those 10 states have also adopted the policy for private employers. The ban-the-box policy essentially removes the criminal history question from the application and delays the inquiry until later in the hiring process.
Don't: Ask about arrests that did not lead to convictions. That being said, you probably want to make an inquiry into the applicant's criminal history to avoid possible negligent hiring claims if you do hire the person and they end up criminally harming someone.
A well-designed employment application will also include:
- a statement related to equal employment opportunity practices
- a statement that employment is considered on an at-will basis and an offer of employment will not be considered a contract
- authorization and approval for the organization to conduct background and all reference checks or verification of application information it deems necessary
- instructions for disabled applicants to ensure compliance with the ADA
- notice regarding the length of time the information will be kept on file
- request that applicants certify the accuracy of the information and that falsification of any information in the application process will be deemed grounds to reject a candidate or to terminate employment if already hired
Follow this simple rule to keep your application inquiries legal: Pay no attention to what the person is and concentrate on learning what the person knows and can do. Personal information not related to one's qualifications and experience is irrelevant.