Top Nine Mistakes Employers Make in Employment Applications

Employment applications – almost every employer in the country uses them.  They don’t seem as if they would be a basis for liability, but they do contain a number of minefields of which employers should be aware.  A general theme of federal and state laws, regulations, and guidance is that employers should avoid asking an applicant questions that elicit information that cannot legally be considered in making a hiring decision.  Below is a list of the top 9 mistakes to avoid in application forms:

1. Including any disability-related or medical questions.  If an employer asks an applicant such a question, the EEOC or a court may presume prohibited information was a factor in hiring.

2. Not including an atwill disclaimer.  In addition to the Employee Handbook, employers may want to inform applicants that the application is not intended to and does not create a contract or offer of employment.

3. Not including a non-discrimination statement.  Employers may want to inform applicants that the company is an equal opportunity employer and does not discriminate in hiring based on state, local and federal-protected classifications (i.e., race, color, national origin).  Check your state and local law for all protected classifications such as sexual orientations or marital status.

4. Requesting graduation dates in the education section.  Asking applicants for graduation dates may lead to a finding of discriminatory intent on the basis of age.

5. Asking about arrests and convictions, without appropriate disclaimers.  New York State and New York City expressly prohibit employers from asking about applicants’ criminal histories on employment applications (these are called “ban the box” laws).  Other neighboring states are on their way to passing similar laws.  So, check your local laws.

6. Putting a background check acknowledgement on the employment application.  Under the Fair Credit Reporting Act (FCRA), the disclosure of an employer’s intent to obtain a background check and section must be in a “stand-alone” document separate from the application.

7. Asking for a photograph.  Guidance from the EEOC prohibits employers from asking applicants for photographs.

8. Asking about marital or familial status.  Asking questions about an applicants’ marital status, the number of kids they have, the ages of their children or dependents, or provisions for childcare could be construed as discrimination on the basis of sex.

9. Asking about citizenship.  Believe it or not, the anti-discrimination provision of the Immigration Reform and Control Act (IRCA) prohibits employers from discriminating against an applicant because he or she is not a U.S. citizen.  The Form I9, rather than an employment application, is the appropriate forum to determine an applicant’s authorization to work status.

Employment applications are not only one of a company’s first contacts with applicants and new employees, they are also written documents that can later be used as evidence in an adversarial proceeding.  Avoiding these common blunders can help employers maintain best practices for employment application materials.