Q&A: How applications support consistent, compliant hiring

Question

Can we rely solely on an applicant’s resume instead of having an employment application completed? The applicant still signs releases for reference checks and verification of education and training, etc., but would not have to complete an application. If an application is still required, what would be the advantage of requiring that?

Answer

There is no legal requirement that employers must use employment applications. However, in deciding whether or not to use an employment application, employers should be aware that there are both a number of benefits to using employment applications as well as legal requirements pertaining to employment applications when used. Below is some information about job application benefits, potential protections, legal requirements, and best practices.

Benefits and protections

Application forms can play an important role in the hiring process. They introduce an applicant to a company, and at the same time, they give an employer initial information about an applicant. At the same time, the forms also allow employers the opportunity to provide important information to job applicants, including notices of at-will employment and a statement about penalties for providing false information.

Employers typically use standardized application forms to solicit information that may be missing from applicants’ resumes and to establish a single, uniform document for each job candidate. Standardizing the type of hiring information that is gathered makes it easier to compare job candidates objectively and can help protect the employer from discrimination claims. Although employment application forms chiefly provide employers with information about prospective employees, application forms often contain important notices (further discussed below).

Application forms can be used to limit the employer’s liability and waive the applicant’s right to assert certain legal claims. Application forms commonly include an equal employment opportunity statement indicating that the employer does not discriminate against applicants based on their membership in a federal, state, or local protected class. Although inclusion of an equal opportunity statement generally is required only of certain government contractors, many other employers use it to communicate that their hiring decisions are based on objective and nondiscriminatory criteria. Some employers even include a statement advising applicants not to list any organizations or activities that may indicate protected class membership.

Statements and waivers protecting the employer typically should be prominently displayed on the application form, usually just above the signature line, and the form should be signed and dated by the applicant. In addition to signing the application, some employers require applicants to initial each waiver to show that they understood what they were signing. Organizations should review their application forms periodically to ensure that no statements in these forms contradict statements in other employer documents and that they comply with federal and state law.

At-will disclaimers are intended to protect employers from wrongful discharge suits by employees who are not covered by a union contract or other written employment agreement. A typical statement on an application form might read as follows: “Nothing on the application is intended to create or imply a contractual relationship; if hired, the employee understands that employment is at will, i.e., that it is not for any specific time period or duration, and can be terminated with or without reason at any time.

While employment policies or procedures may change from time to time, only a written agreement signed by the company’s president can change the employee’s at-will status.” Employers should check that the disclaimer language is consistent with language in other company materials, such as recruitment literature and employee handbooks.

Employers should include a statement that the applicant attests to the accuracy and truthfulness of the information provided, and that any misstatement of material facts will be grounds for disqualifying the applicant from further consideration in the selection process or, if hired, grounds for discharge.

Legal requirements and best practices

Application forms that fail to meet legal requirements expose employers to liability claims and penalties for noncompliance. The form should be easy to read and should only ask questions that are job-related.

Anti-discrimination

Employers should make sure that application forms do not contain questions that are likely to elicit information related to legally protected characteristics such as disabilities, medical conditions, gender, and age. Although state and federal equal opportunity laws do not expressly prohibit employers from asking questions based on protected characteristics, the questions may be used as evidence of an employer’s intent to discriminate, unless the questions can be justified by some business purpose. The Equal Employment Opportunity Commission (EEOC) “generally presumes” that employers will use the information obtained from applicants when making employment decisions.

Thus, the simple act of asking about an applicant’s age or national origin could be used as evidence of discrimination, unless the employer has a legitimate job-related reason for asking for the information. Under federal law, therefore, employers should not ask for information on an application form that would show an applicant’s race, color, creed, national origin, sex (including sexual orientation and gender identity), age, disability, or genetic information. The EEOC provides guidance on Applications and Hiring and Pre-employment Inquiries.

Employee addresses

While some job applicants may provide their address in their resume, others may not. There is nothing prohibiting employers from requesting job applicants’ address history. However, they will want to be mindful as to how they use this information (as well as the perception of how they are using it) to avoid discrimination claims. An employer should also be careful not to use applicant address information to speculate as to citizenship status, authorization to work in the United States, race, ethnic background, or national origin.

If an applicant has lived outside of the country in the last five years, an employer may, consciously or unconsciously, be inclined to draw assumptions as to an applicant’s ability to work in the United States, as well as their race, ethnicity, and/or national origin. The Immigration Reform and Control Act of 1986 (IRCA) contains a provision that prohibits employers from discriminating in hiring, firing, recruiting, or referring on the basis of national origin or citizenship status. Employers should be particularly cautious about any employment practice that could be interpreted as discriminating against job applicants or employees based on their nationality or citizenship.

Graduation dates

Application forms should not request school graduation dates, as these inquiries may reveal an applicant’s age. An employer may ask, “Did you graduate?” and “How many years did you attend?” because these questions are not likely to elicit information about an applicant’s age.

Family information

Application forms should not ask if an applicant is pregnant, is planning to have a family, has a maiden name or has changed names, has childcare arrangements, or inquire about the ages of an applicant’s children. Employers should wait until they are ready to perform a background check before asking if an applicant has worked or attended school under another name.

Driver’s licenses

Unless driving a vehicle is required for the job the applicant is seeking, an application form should not ask if an applicant has a driver’s license or require a copy of a driver’s license. Asking if an applicant has reliable transportation or owns a car is also inadvisable.

Employee disabilities

Application forms should avoid any inquiry about a disability, past use of sick leave or family leave, or workers’ compensation claim history. Such inquiries are likely to violate the Americans with Disabilities Act (ADA), which expressly prohibits employers from asking whether an applicant has a disability or about the nature, extent, or severity of a disability. An employer may inquire into these areas after it has offered the applicant employment if it makes the same inquiries of all applicants for the same job category. Employers are also prohibited from discriminating against an applicant because of the applicant’s association or relationship with an individual with a disability.

Religious beliefs and work hours

Application forms should avoid asking about an applicant’s ability to work on any religious holiday, Friday nights, or weekends. This kind of question may elicit information about an applicant’s religious beliefs and should not be asked unless there is a business need for such information. EEOC guidelines suggest that an employer state the normal work hours for a job and—after making it clear to the applicant that there is no requirement to disclose religion-related absences needed during the scheduled hours—ask the applicant whether they are otherwise available to work those hours.

Criminal records

Enforcement guidance issued by the EEOC recommends that employers not ask about convictions on job applications. It is EEOC’s position that an employer’s neutral policy of excluding applicants based on certain criminal conduct may have a disparate impact on applicants protected under Title VII. To avoid a violation of Title VII, employers must be able to show that the exclusion is job-related and consistent with business necessity.

One way to satisfy this requirement is to develop a targeted screen that takes into consideration the nature of the crime, the time elapsed, and the nature of the job. In addition to the targeted screen, employers must conduct an individualized assessment consisting of:

• Notice to an applicant that they have been screened out because of a criminal conviction,
• An opportunity for the applicant to demonstrate that the exclusion should not be applied due to their particular circumstances, and
• Consideration by the employer of the additional information.

According to guidelines issued by the EEOC, arrest records do not provide evidence of guilt, and a policy of refusing to hire an applicant with an arrest record may be considered discriminatory.

Labor organizations

Applications should not inquire about affiliation with a union. The National Labor Relations Act (NLRA) prohibits employers from discriminating against an applicant in order to encourage or discourage membership in any labor organization.

Language skills or fluency

Unless required for the position in question, applications should not ask about an applicant’s language skills. An applicant may be asked about the languages they read, speak, or write if knowledge of a specific language is necessary for effective job performance.

Citizenship

Job applications should not inquire about the birthplace or citizenship of an applicant. Employers should limit an inquiry to asking if an applicant is authorized to work in the United States.

Emergency contact information

Employers should avoid using an application form to ask applicants to identify a person to contact in case of emergency. Such an inquiry may elicit information about a familial status, marital status, a domestic partnership, or other associations unrelated to the applicant’s qualifications. Employers may request emergency contact information after an applicant is hired.

Relevant state of Washington legal requirements

Pay history

All employers are prohibited from seeking a job applicant’s wage or salary history from the applicant or from their employer (Wash. Rev. Code § 49.58.100). This would preclude such a question in the employment application. An employer may confirm an applicant’s wage or salary history after the employer has negotiated and made an offer of employment, including compensation.

Criminal history

The Washington Fair Chance Act prohibits public and private employers from asking about an applicant’s criminal history, conducting a criminal background check, or otherwise obtaining information about an applicant’s criminal history until after the employer initially determines that the applicant is otherwise qualified for the position, with some exceptions (Wash. Rev. Code § 49.94.005 et seq.). “Otherwise qualified” means the applicant meets the basic criteria for the position as described in the job advertisement or job description without consideration of a criminal record. Accordingly, a job application should not contain questions about criminal arrests or convictions.

Proof of age

Proof of age may be requested once an employee has been hired (Wash. Rev. Code § 49.44.090). Accordingly, employers should avoid asking about age in job applications, as well as questions that may reveal an applicant’s age (such as graduation dates).

Social media

Employers may not ask an employee or applicant to disclose login information for a personal social networking account. In addition, employers may not request access to their account in the employer’s presence so that the employer can observe its contents (Wash. Rev. Code § 49.44.200).

Summary

While the use of job applications can provide employers with a number of benefits and protections, their use also triggers certain legal requirements, as discussed above. Note that these limitations on what may be legally asked are not limited to job applications but extend to other types of inquiries (such as job interviews). Ultimately, employers must make a business decision as to whether they want to use job applications.

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