Employment Application Forms: What to Avoid
Employment applications are an essential part of the hiring process, but it is important that the form is drafted carefully and complies with all relevant federal, state, and local laws.
An employment application provides your company with an opportunity to make specific inquiries into an applicant's work and educational background in a standardized way. The standardized collection of data can make it easier to identify which candidates meet the minimum qualifications for the job and to fairly compare candidates to one another.
Even if a candidate has provided a resume, they should also be required to submit an employment application, since the application form generally elicits information applicants tend to exclude from their resumes. However, employment applications must be carefully crafted and should take into consideration federal, state, and local laws.
The following are some guidelines on what to avoid in employment applications:
What to avoid
Inquiries about protected characteristics. Like all other aspects of the employment relationship, your hiring process must be free from discrimination under all applicable federal, state, and local employment laws. This means that generally you may not ask applicants questions that would reveal characteristics that are protected under the law, such race, color, age, national origin, religion, sex, veteran status/military status, disability, and genetic information. Many states and local jurisdictions protect applicants and employees based on additional characteristics. Check your state law to ensure compliance.
Avoid any questions on employment applications that may directly or indirectly reveal, or could be perceived as a preference for, a protected characteristic. For example:
- Sex - It is unlawful to use a different standard when evaluating applicants with different genders. Therefore, questions that reveal the applicant's sex, marital status, number or ages of children or dependents, or provisions for childcare, as well as questions regarding pregnancy, child bearing or birth control.
- Citizenship - Questions about a person's citizenship may reflect discrimination based on their national origin. Further, citizens of other countries are legally able to work in this country under certain conditions and circumstances. Employers may ask whether the applicant is legally authorized to work in the U.S. as long it is asked of all applicants, but you shouldn't ask whether an applicant is a U.S. citizen.
- Age - Employment application questions that request a person's age, date of birth, or date of graduation should be avoided. However, asking whether a person is at least 18 years old or has the necessary work permit would be acceptable.
- Disability - Employment application questions about disabilities, medical treatment, medications, addictions, or the amount of sick leave taken in an applicant's last position aren't permitted.
Note: In certain situations, such as when an employer is a federal contractor, the employer may be required to give applicants an opportunity to voluntarily self-identify their race, ethnicity, gender, veteran status, disability, or other protected characteristic to promote equal employment opportunities. The pre-offer invitation to self-identify must be separate from the application.
Criminal conviction inquiries. Several states and local jurisdictions expressly prohibit employers from asking about criminal convictions on employment applications and may also require employers to wait until after a conditional offer of employment has been made. These are commonly known as ban-the-box laws. Additionally, the Equal Employment Opportunity Commission (EEOC) has taken the position that employers should avoid asking about criminal histories on employment applications. The rationale is that an employer is more likely to objectively assess the relevance of an applicant's conviction if it becomes known after the employer has already vetted the applicant's qualifications and experience.
Asking for Social Security Number. While federal law doesn't prohibit employers from asking for a Social Security Number on employment applications, it isn't considered a best practice because of the risk of identity theft. Additionally, some states have laws that restrict employers from asking for individuals' Social Security Number on application forms, including requiring employers to encrypt the data if the application is completed via the Internet.
Including the FCRA Notice. Under the Fair Credit Reporting Act (FCRA), before conducting a background check on an applicant using a third party, employers must inform the individual that the employer may use the information to make employment decisions. This notice must be in writing and in a stand-alone format--the notice may not be provided in an employment application. In addition to FCRA, employers should review applicable state and local laws on background checks, which may have additional rules.
Asking about salary history. Many state and local jurisdictions have enacted laws restricting or prohibiting employers from making inquiries during the hiring process into an applicant's pay history. The idea behind these laws is that an applicant's pay history may reflect discriminatory pay practices of a previous employer, which could lead to lower wages in the new job. If you are subject to these restrictions, remove salary history questions from your application form and train your managers not to ask about an applicant's pay history during the pre-employment process.
Employment applications are an essential part of the hiring process, but it is important that the form is drafted carefully and complies with all relevant federal, state, and local laws.
Confused by HR regulations? Get help knowing what applies to you. Learn about ADP HR for Small Businesses
This article was originally published as an "ADP HR Tip of the Week" which is a communication created for ADP's small business clients.
