- Course: Employment Law 101
- Module: Hiring Process
- Lesson Type: Video
- Lesson Duration: 8:48
In this section, we're going to talk about the application process. An employment application shouldn't include questions that produce any type of response that would bear on the applicant's protected status. For instance, their age, their race, disability, national origin. Things of that nature. Many state and federal laws don't directly prohibit those types of questions. However, those types of questions can certainly be used as evidence of an employer's intent to discriminate against a protected class or an individual. So we want to make sure that the questions that are being asked are justified through some legitimate business purpose.
Information for background checks should be obtained on a separate form from the application and we'll talk about that in another lecture. Here we're going to talk about common inquiries that you want to think through carefully and/or, and probably more likely, avoid in terms of the application.
The first will be birthdates. Birth dates are generally going to be indications that you're using age as a rationale or a decision making factor in the process and that likely can run afoul of the ADEA, Age Discrimination Employment Act, on the federal level and several different state laws that deal with age discrimination.
Another one would be graduation day. These are similarly questions in which you can figure out when the degree was attained and generally what that applicant’s age might be. So unless it's important or necessary, that's not something that would be part of the application. Generally, you want to try to avoid that.
Another one, and this one’s a little more complicated, is military discharge information. The thing with military discharge information is that, you know, questions that are relevant to work experience, training that have been received when in the military are certainly permissible but looking into the reasons someone was discharge, unless it's related to something like veteran preference generally for the public sector, should be avoided. You shouldn’t really be looking at that. Part of the reason is many military may be discharged for medical reasons and that would potentially create issues with the Americans With Disabilities Act. So military discharge information, need to think through carefully what you ask and how what information you collect.
Next one is previous sick days used by the employee with another employer and that one is, in general, a question that may get you in trouble with both the ADA but also maybe with the Family Medical Leave Act, FMLA. You know, those are rights under those particular laws to use those sick days and that time and so construing that as part of the application process maybe interpreted as retaliatory and that's what you want to avoid.
Also, race inquiries, I think that's fairly common sense. The challenge here is that a lot of businesses make a decision, that they're going to create an affirmative action plan. As they start to collect this data and usually the challenge is when and how do you collect this data. A separate form with a tear off section away from the application is probably best but make sure that clearly that race is not part of the selection process and that is voluntary on the part of the applicant.
The next one is citizenship and citizenship is a inquiry that can create a lot of challenges with national origin and, in addition, you can look at citizen status and, in some situations, there may be challenges with people feeling like they were discriminated because of extra hoops they had to go through that weren’t required by the law in terms of verifying their citizenship for work purposes.
The next one after that will talk about is essentially questions pertaining to maiden names or whether somebody is married or not and clearly, this deals with marital status discrimination. Now, marital status discrimination is not necessarily a challenge in the federal sector but many many states have this is a protected category and unless it's necessary for some reason generally should be avoided in the application process.
Finally, social security numbers. Now asking for a Social Security number from an applicant is not unlawful and many standard forms have it on there but it's not recommended. In this information age we have identity theft and we have lots of privacy concerns and you know, unless you need that for a specific reason and you may need it after the application process and after an interview for background checks and things of that nature but until you get to that stage in the process, you generally should avoid social security numbers. Collecting them or having them in random files can create some liability and certainly some privacy concerns for the employee and those are things you want to avoid.
OK those are the general inquiries to avoid but there's one other that I'm going to add to the list and that one is arrests and convictions. And this I want to think through with you carefully because there is a challenge in that many times especially in the interview process somebody will ask about arrests and/or convictions and there's a distinction. People that have done nothing wrong have been arrested in the past and no conviction but they have an arrest record. That cannot be used in the applicant's decision, in the application process and in the decision making process on behalf of the employer. Convictions potentially could but there's a strong public policy argument that only convictions should be used if it directly pertains to the position being applied for. For instance, if somebody was convicted of robbery or forgery or something like that, putting him in a position of handling other people's money in a bank, clearly, it would be relevant but if it's driving a truck maybe it's not as as critical to the job being applied for. So you have to be very careful. There's a movement that started around 2009 and 2010 and picked up a lot of steam around 2012 where states are considering things like Ban the Box and that is the nickname that was given for the box on the application that asks whether an applicant has been convicted or arrested. The idea is that the employee with a criminal record should have an opportunity to get back into society. A lot of cities and counties, including New York City, have taken the step of having legislation that deals with prohibiting inquiries about convictions or criminal records and things of that nature. The purpose of that type of reform is to give applicants that have these challenges a better chance to find a job and be evaluated based on their qualifications to perform the job and not sins of the past, especially if they paid the price to society and served whatever term and penalties were administered based upon their combat. So those are the areas to think about in terms of areas to avoid in the application process.
Mark A. Addington, Esq. advises and advocates on behalf of businesses concerning Labor & Employment Law, Business Regulatory Compliance, Restrictive Covenants (Non-Competition, Non-Solicitation, and Confidentiality), Wage & Hour, Privacy, Technology,...Mark's Full Bio
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