Oftentimes, it is to employers’ benefit to implement a robust documentation policy with respect to their employees. Whether an employee requests FMLA time, mentions a disability that makes her job more difficult or raises the specter of discrimination or harassment after adverse employment action, documentation may be the key to limiting or avoiding legal liability.
But employers need not wait until employees are actually on the payroll. Indeed, employers can take several steps at the preliminary stage of employment – the employment application – to try to head off problems down the road. Some things employers should consider:
- At-will Disclaimer. Employers should consider including a statement in the application advising applicants that the application is not intended to and does not create a contract or offer of employment, and that any ensuing employment will be on and at-will basis that may be terminate at the will of either party. Such language may be useful in defending a claim of breach of contract or assertions that there was an offer of guaranteed employment.
- Non-Discrimination Statement. Employers should include language informing applicants that the employer is an equal opportunity employer that does not discriminate in hiring based on federally-protected (and state-protected) classifications.
- Exclude background check acknowledgement. Because the Fair Credit Reporting Act requires the disclosure of an employer’s intent to obtain a background check be in a stand-alone document, employers should exclude any such acknowledgement or notification from the application itself and prepare a separate, stand-alone document.
- Exclude disability and medical questions. In the application, employers would be wise to avoid questions asking about applicants’ disabilities and/or medical conditions. Not only would such inquiries run afoul of EEOC guidance, and potentially the ADA and similar state laws, including such questions in the application may later be offered as evidence that the information was used as a factor in hiring.
- Caution regarding criminal history. Exploring prior arrests and convictions is a thorny area fraught with peril for employers. A number of states and localities have passed so-called “ban the box” laws prohibiting employers from asking about applicants’ criminal history on employment applications. Likewise, the EEOC suggests not asking about convictions on job applications, but, if employers do, to limit the inquiry to convictions for which exclusion would be “job related for the position in question and consistent with business necessity.” And asking about arrests becomes even more problematic because an arrest alone does not demonstrate the applicant actually engaged in criminal conduct. Employers should carefully consider how to navigate existing federal, state, and local law with respect to seeking criminal history information, if at all, from job applicants.
- Avoid age-related inquiries. Although an applicant’s experience may be relevant to a job qualification, employers should be careful about asking for graduation dates or other information that reveals the applicant’s age. Problematically, such inquiries that enable the hiring manager to guess or estimate the applicant’s age, when unrelated to job qualifications for the position, may lead to assertions of discriminatory intent on the basis of age under the ADEA.
- Avoid marital and familial status inquiries. Asking questions about an applicant’s marital status, number/age of kids, or provisions for childcare may give rise to assertions of discrimination on the basis of sex. Also, marital or familial status may be a protected class under state law.
- Avoid citizenship inquiries. Federal law prohibits discrimination against an applicant because he or she is not a US citizen. Rather than asking about citizenship and giving rise to the possibility of a discrimination claim, in the employment application, employers should consider limiting their inquiries to asking whether the applicant is legally qualified to work in the US.
Employment applications are, typically, of critical importance in the hiring process and constitute employers’ first – and maybe only – contact with applicants. For the many applicants who are not hired, employers should best position themselves proactively for the prospect of potential legal liability arising from the decision not to hire. Carefully constructing the employment application may go a long way in preventing claims or, at a minimum, better positioning the employer to defend any such claims that arise.