Employers must give careful consideration to the questions used in an employment application. A number of problem areas have arisen concerning questions which are included in an employment application or asked during the course of a job interview. There is no specific prohibition of drug-testing under federal law although several states have imposed certain restrictions on the use of drug tests.
All employers are required to complete a Immigration and Naturalization Form I-9 for each new employee. This form verifies that the employer has checked documents which show a person's right to work in the U.S. The hiring of an unauthorized alien can subject an employer to fines and imprisonment.
Although an employer may not discriminate based upon gender, Title VII does not prevent discrimination on the basis of sexual orientation. However, some states and cities have laws which prohibit discrimination in employment on the basis of sexual orientation.
There are a number of things an employer is prohibited from asking the applicant. These include:
- Age/date of birth: Generally, age is considered not to be relevant in most hiring decisions, and therefore, date of birth questions are improper. The Age Discrimination in Employment Act protects employees 40 years old and above. It is permissible to ask an applicant to state his or her age if it is less than 18. Internal uses of date of birth for computations with respect to a pension or profit-sharing plan, this information can be obtained after the person is hired.
- Race, religion, national origin: These questions are generally inappropriate, either on employment applications or during job interviews. Ordinarily, Title VII of the Civil Rights Act of 1964 requires that employers make reasonable accommodations for their employees’ religious practices, thus eliminating the necessity for asking whether an applicant’s religious beliefs would prohibit his or her working at certain times and on certain days in most situations.
- Physical traits, disabilities: If questions are asked related to height and weight requirements such requirements should be directly related to job performance .The Americans with Disabilities Act prohibits general inquiries about disabilities, health problems, and medical conditions.
- Union membership: It is not proper for a prospective employer to ask the applicant whether or not if they are a member of a union.
- Arrest, conviction records: The EEOC takes the position that questions concerning arrests are improper unless the applicant is being considered for a "security sensitive" job and the employer does an investigation to determine, in effect, whether the applicant was likely to have committed the crime for which he or she was arrested. The EEOC also says that questions about an applicant’s conviction record are improper unless the employer can show that the conviction is in some way related to the position being applied for. The EEOC takes these positions because of statistics which show that minorities are arrested and convicted at considerably higher rates than whites.
- Garnishment: Questions concerning whether an applicant has been the subject of garnishment proceedings should be eliminated from employment applications. Using the garnishment history of an applicant in determining whether he or she will be hired is probably discriminatory, because more minority members have their wages garnished than do with whites.
- Citizenship: The anti-discrimination provision of the Immigration Reform and Control Act provides that an employer cannot discriminate because an applicant is not a U.S. citizen. Therefore, citizenship questions should probably be deleted from employment applications. The Form I-9 is the appropriate place to determine citizenship status instead of the employment application.
- Drugs, smoking: It is permissible to ask an applicant if he or she uses drugs or smokes. The application also affords an employer the opportunity to obtain the applicant’s agreement to be bound by the employer’s drug and smoking policies. The application also affords an employer an opportunity to obtain the applicant’s agreement to submit to drug testing.
- Other problem areas: Questions concerning whether an applicant has friends or relatives working for the employer may be improper, if the employer gives a preference to such applicants. Questions concerning credit rating or credit references have been held to be discriminatory against minorities and women. Questions concerning whether an applicant owns a home have been held to be improper as being discriminatory against minority members, since a greater number of minority members do not own their own homes.
The employment application is an important part of the hiring process: it provides employers with clear and relevant information about applicants. An application is also a legal document and becomes a part of a person's permanent file once he or she is hired. A start-up small business without such an application can write its own or acquire forms from vendors; if the form is produced in-house, it is advisable to have it checked by a qualified attorney to avoid violating civil rights statutes at federal and state levels.
Applications contain questions designed to help the employer make a hiring decision. In essence, they reorganize the information the employer typically finds on a resume while also furnishing additional information that can be helpful in making hiring decisions. Application contents typically include the following:
- Statement by the business that it is an equal opportunity employer and that it is the policy of the business to provide opportunities to all qualified persons without regard to race, creed, color, religious belief, sex, age, national origin, ancestry, physical or mental handicap, or veteran's status.
- Name, address, phone number, and other relevant contact information.
- Position the applicant is seeking within the company.
- Hours of availability.
- Expected salary.
- Past experience—This will make up the majority of the application form, for it is common for companies to request a listing of all positions that an applicant has held over the past three to five years. This section may include a request for supervisor names and reasons for leaving previous positions.
- Educational background—This typically includes schools attended, years attended and degrees attained.
- Other information—This might include questions about the applicant's experience with computer software programs and other office equipment, or it might ask the person to describe hobbies and other interests. This section of the application can be a tricky one for employers, as some questions may violate legal parameters. A good rule of thumb for small business owners weighing whether to include questions of this type is to always make sure that the responses could be pertinent to making a hiring decision.
- Closing statement—The statement at the end of an application usually includes legally worded information for the applicant about the application, including permissible uses of the information contained therein. The employer should mention that they are an equal opportunity employer on the document, and legal experts recommend that employment applications include a statement regarding the right of the hiring company to check references and verify information on the application. The employer should state clearly that falsifying any information on an application can be considered grounds for dismissal.
- Signature of applicant.
Again, it is advisable to have a home-made employee application checked by an attorney in order to avoid potential complications.
There are several possible pitfalls in designing an application form. On an application form, it is not permissible to pursue any of the following lines of questioning:
- Questions about the applicant's age, race, sex, religion, national origin, physical characteristics, or other personal information that violates Equal Employment Opportunity Commission (EEOC) guidelines.
- Questions about the applicant's health history or handicaps (if any) that violate the Americans with Disabilities Act (ADA).
- Questions that violating any state regulations (individual states may have regulations concerning employer rights to inquire about past salary history, referral sources, credit, access to transportation, or personal emergency information). It is important to check for state guidelines in employment applications before putting together a business application.
In the Internet age, the start-up business can quite readily find carefully written employment applications on the Internet. A Google search on the phrase "employment forms" will produce in excess of 300,000 hits, a Yahoo search in excess of 280,000. The first couple of pages will already offer some free forms for direct downloading as well as forms for purchase. Alternatively, the business owner can purchase books with forms, some with a CD attached (examples are provided in the references below, see Fyock and Steingold) from which a form appropriate to the business can be selected.
USING THE APPLICATION
The application should be given to every person applying for a position from outside the company. It should be required regardless of level of position, so that all potential employees have a similar experience and receive similar treatment. Normally, a separate, abbreviated application form is used for people who are already employed by the company who wish to apply for positions elsewhere within the company.
Some laws require employers to retain applications—whether the person is hired or not—for up to one year after the date the application is made. The employer is not usually required to reconsider the applications on file as new positions become available, but they must have record of the applications made to the company. Applications become a part of the permanent record of the employee once hired. Increasingly, these employee records are held in electronic files.
SEE ALSO Employee Hiring
Fyock, Catherine D. Hiring Source Book. Society For Human Resource Management, 28 April 2004.
"Integic Lands OPM Work." Washington Technology. 24 January 2005.
"Made E-Z Products Inc." Roofing Contractor. May 2004.
"Personnel Forms." Roofing Contractor. October 2003.
Smith, Shawn A. and Rebecca A. Mazin. The HR Answer Book. AMACOM, March 2004.
Steingold, Fred. S. Legal Forms for Starting & Running a Small Business. Nolo, February 2006.
Hillstrom, Northern Lights
updated by Magee, ECDI