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April 19, 2014

Have You Updated Your Employment Application Recently?

One routine HR document that often gets overlooked in the hectic life of HR professionals is the company employment application.  If you have not updated yours in the last few years, set aside some time to review it and make any necessary changes.  You may just avoid a costly lawsuit.

Here are a few sections that you should focus on:

1.  The Educational History section.  Does your application ask “what years” or “which years” the applicant  attended a particular educational institution?  Does it askwhen the applicant graduated?  If so, delete all such “date” references.  Why?  An applicant who is not hired could claim the company discriminated against him/her on the basis of his/her age, arguing one could easily estimate “how old” the applicant was by looking at these dates.  To avoid this, just ask if they graduated, and (if you really need to know) “how many years” they attended.

2.  The Criminal History section.  Do you ask about an applicant’s criminal history?  If so, do you ask about arrests, convictions, or both?  Some states prohibit inquiries related to old arrests that did not result in convictions.   Some states limit how many years back an employer can consider convictions.  Some draw distinctions between felonies and misdemeanors.  And the EEOC doesn’t like you asking the question at all.  So before you ask, check your state and local laws to see if there are any limits or prohibitions on what you can ask related to an applicant’s criminal history, and revise your application accordingly.

3.  The Background Check section.  Do you contract with third party companies to conduct background checks on your applicants?  If so, do you properly disclose that fact to applicants?  The Fair Credit Reporting Act (“FCRA”) requires detailed notice to (and “authorization” from) applicants when an employer utilizes third party “consumer reporting agencies” to conduct background checks.  Certain documents are required to be given to applicants.  The FCRA also limits how and when an employer can utilize the results of such investigations in the hiring process.  In short, it is a legal minefield.  Avoid injury by  including the necessary language and forms in your employment application.

4.  The Personal Information Section.  If you ask for “Personal” information, make sure you do not ask for an applicant’s age (such as ”DOB”), race, religion, creed, gender, national origin, sexual orientation, military status, disability status, marital status, pregnancy or family status, or any other “protected classification” under federal, state and/or local discrimination laws.  None of this is relevant, and most jurisdictions prohibit you from asking these questions. (Again, check your state and local laws).  Avoid creating Exhibit #1 in a lawsuit.

5.   The name of your company.  Did your company merge, get acquired, or adopt a new name?  If so, make sure the application reflects the new company moniker.  Otherwise, it is confusing and looks sloppy.  In fact, as you go through these and other sections, look for typos, misspellings and poor grammar.  “Clean it up” and you will create a more professional (and favorable)  impression.

© MICHAEL BEST & FRIEDRICH LLP

About the Author

Mitchell W. Quick Michael Best Friedrich LLP
Partner

Mitch Quick is a partner whose practice includes all aspects of management labor and employment law, with an emphasis on employment discrimination litigation, wrongful discharge, and wage and hour law issues. He has represented large and small manufacturing facilities, dairy cooperatives, hospitals, financial institutions, nursing homes and county and municipal employers. He is co-author of Michael Best & Friedrich’s “Guide to the Fair Labor Standards Act” and editor of the Firm’s “Wage and Hour Question of the Month.”

Mr. Quick's practice...

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