Job Applications

Because résumés aren’t standardized and may not provide all the information needed to screen applicants fairly and effectively, most organizations ask candidates to fill out a job application. Make sure yours is easy to understand and provides simple instructions.

Ask an employment law attorney to review all your application forms to ensure they meet federal, state and local requirements. Don’t ask for information that could be considered illegal.

Most applications will include:

• General personal data, including name, address, phone number and Social Security number.
• Educational and professional experience, including schools attended and degrees earned, employment history and names of supervisors. You may also want to include a blank page to allow applicants to expand on their professional experience or educational background.
• List of professional references.
• An area marked “for administrative use only” where you can record test scores or interview information for internal use. Just remember that anything written in this area can be used in court or at an EEOC hearing.
• Equal employment opportunity statement informing applicants that all persons are encouraged to apply regardless of age, sex, religion, national origin, race or disability.
• A statement indicating that accommodations are available to disabled applicants who need and request them.
• A statement of accuracy, signed by the applicant, attesting that the information furnished in the application is correct and accurate, as well as a statement that falsification of information is grounds for dismissal.
• A signed release-of-information statement, authorizing your organization to run security and background checks. This can include a statement under the Fair Credit Reporting Act giving you permission to run a credit report on the applicant.
• A signed acknowledgment of arbitration provisions if your organization uses them.

You may also want to include a statement to the effect that applicants understand that if hired, they are at-will employees and have no guarantees of permanent or long-term employment. Make sure your attorney reviews that statement.

Also, remember to gather only job-related data that will help you make an employment decision. You don’t need to know the applicant’s age, marital status or family size. Asking those types of questions could be interpreted as a way to screen out applicants based on childbearing, religion or age. Always ask yourself whether the questions on the application form will help you make a selection and are job-related. If they aren’t, don’t put them on the application.

Observation: Asking a candidate’s age or obtaining that information in a roundabout way can cause legal trouble. For example, avoid asking what year someone graduated from high school or college; that can be seen as a way to determine the applicant’s age. But what can you do if you need to know how current an applicant’s skills are or when the date of graduation from a program may be relevant? Don’t ask for the date, but ask about the particular skill in question. Say you’re hiring a computer programmer and require a degree in computer science and knowledge of programming languages. Ask about specific experience in those languages, not the date of graduation.

Only in rare instances is someone’s age relevant enough to constitute a bona fide occupational qualification (BFOQ): one that’s reasonably necessary to perform the job. For example, age is a BFOQ for airline pilots because the Federal Aviation Administration sets the age limit for pilots at 65 years for safety reasons.

Recommendation: If you’re filling a job that requires financial discretion, you may want to get a picture of the applicant’s finances. An applicant with a poor credit history may be risky for a position that requires handling large sums of money or that comes with a corporate credit card. Before doing a credit check, make sure you have a legitimate business reason.

Fair Credit Reporting Act

The FCRA requires employers to notify and receive written consent from applicants or employees before obtaining credit reports or other background information on them from a consumer reporting agency (CRA). The law, as interpreted by the Federal Trade Commission, applies only to third-party background checks, not to an employer’s own investigation of, say, an applicant’s references, educational degree or driving records.

If you are requesting an “investigative consumer report”—a more in-depth investigation than just a credit report—you must provide the applicant with a disclosure revealing the applicant’s right to request information about the “nature and scope” of the report. Should the applicant make such a request, the employer has five days to provide that information.

If the employer chooses not to hire the individual based on information obtained in the report, the employer must provide a “pre-adverse action” notice to the applicant. This notice must include a copy of the consumer report and the Consumer Financial Protection Bureau’s (CFPB) Summary of Rights.

The applicant may challenge the pending decision by presenting evidence that the information in the report is false or inadequate. If the employer remains unpersuaded by the applicant’s evidence, it should issue an “adverse action notice” that includes:

1. The name, address and telephone number of the CRA that provided the report
2. A statement that the CRA did not make the adverse decision and therefore will be unable to provide information as to why the decision was made
3. A statement explaining the applicant’s right to obtain a free copy of his or her report from the CRA if requested within 60 days
4. A statement explaining the applicant’s right to dispute the accuracy or completeness of any information in the report with the CRA.

Failure to follow these procedures can open the employer to charges it “willfully” or “negligently” violated the FCRA. Applicants can seek actual damages, punitive damages, and attorneys’ fees and court costs. For more information, go to www.ftc.gov.