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Common mistakes employers make on their employment applications

July 31, 2017

By Kristen Cifolelli, courtesy of SBAM Approved Partner ASE

Smart employers use employment applications to gather consistent data in a uniform format about their applicants.  This allows for easier comparison of their backgrounds and skill sets in order to help make better hiring decisions.  Some of the other benefits of using applications include gathering information that an applicant wouldn’t typically include on their resume such as reasons for leaving a prior employer and gaining a signoff regarding the accuracy of the information reported.  

Federal and state laws prohibit employers from inquiring about certain characteristics protected by law such as age, religion, race, marital status, etc. and using them to make decisions regarding a job offer.  A poorly written employer application, can open an employer to legal risk by gathering information that shouldn’t be considered in the hiring process.  

According to a recent article published by the law firm, Ogletree Deakins, the following are the most common mistakes employers make with their applications:

  • Asking for social security number on the application – while asking applicants to provide their social security number to use for a background check is lawful, putting it on an application can be problematic.  Michigan’s Social Security Number Privacy Act requires employers to enact protections and to keep social security numbers confidential in order to ensure they are not inappropriately disclosed.  Typically applications are made available to a number of individuals in an organization during the hiring process, many of which have no business reason to view a candidate’s social security number.  Often times, applications are available for view in an Application Tracking System or paper forms are left out unsecured.  Employers would be advised to remove it from their applications and gather social security numbers for background checks or other hiring purposes in a separate process.
  • Including any disability-related or medical questions – Title I of the Americans with Disabilities Act (ADA) limits an employer from asking disability-related questions before an offer of employment is made. In general, this means that employers cannot ask questions on a job application that are likely to elicit information about a disability. For example, employers cannot ask whether an applicant has a physical or mental impairment, has received workers compensation, or was ever addicted to illegal drugs.  Employers are permitted to ask applicants “Can you perform the essential functions of the job you are applying for with or without reasonable accommodation?”
  • Not including an at-will disclaimer – Employers should be sure to include a statement in their application that states that the application is not intended to and does not create a contract or offer of employment.  In addition, there should also be a statement that makes clear that if the applicant is hired, their employment is at-will and that they can be terminated at any time for any reason at the will of either party. 
  • Failure to include a non-discrimination statement – Employers will want to affirmatively state that they are an equal opportunity employer and that they don’t discriminate based on any characteristics protected by federal, state or any other applicable laws.
  • Requesting graduation dates in the education section – Employers are prohibited from inquiring about the age of applicants, and including graduation dates may enable employers to determine the age of a candidate.
  • Asking about arrests and convictions without appropriate disclaimers – many states and some local jurisdictions prohibit employers from asking about an applicant’s criminal history until after a first interview or conditional offer.  These are more commonly referred to as “ban-the-box” laws.  The state of Michigan does not have any ban-the-box laws; however, some localities in the state do such as the City of Detroit, Ann Arbor, and Genesee County just to name a few.  In addition, the state of Michigan bans employers from asking about arrest records.   

The EEOC has also stated that employers should not apply blanket prohibitions against hiring individuals with conviction records as it could limit employment opportunities of some protected groups.  If employers do inquire about criminal convictions on an application, language should be included that it will be evaluated on a case-by-case basis.  An example of this type of verbiage includes the following:  Have you ever been convicted of a crime (felony, misdemeanor or other criminal offense)?  If yes, please list date, location and a complete explanation of all offenses.  A conviction will not necessarily bar employment.  {Company Name} will consider the nature, date, and circumstances of the offenses as it relates to the job being applied for.

  • Putting a background check acknowledgement on the employment application – Under the Fair Credit Reporting Act (FCRA), if an employer is using a third party to conduct a background check, the employer’s disclosure and intent to obtain a background check must be in a stand-alone document.
  • Not including language instructing applicants how to request a reasonable accommodation to apply or participate in the interview process – Under the ADA, employers are required to provide applicants reasonable accommodation during the application process.  Employers may want to consider including information that provides detail regarding how that process may be initiated.
  • Asking for a photograph – The EEOC prohibits employers from asking applicants to provide a photograph as it may provide information that could help employer determine age, race or other protected criteria that could be inappropriately used during the hiring process.
  • Asking about marital or familial status – Employers should not include a question asking applicants to identify their maiden name or check the box for “Miss, Mrs., or Ms.” These questions identify marital status which is prohibited in the state of Michigan.
  • Asking about citizenship – The Immigration Reform and Control Act (IRCA) prohibits employers from discrimination against an applicant because they are not a U.S. citizen.  Instead employers should ask “Are you authorized to work lawfully in in the United States?”    As a follow up question, employers may ask the following to determine if any applicants are in need of an employment related visa, “Will you now or in the future require visa sponsorship for employment (visa sponsorship for an immigration-related employment benefit means that the employer would need to petition or apply on behalf of the candidate for a US immigration status which permits employment such as an H-1B status)?” 

Following these recommendations will help employers avoid some of the most common pitfalls that open them to legal liability on their employment applications.

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