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Job applications: How to create a legally safe form

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in Discrimination and Harassment,Employment Background Check,Employment Law,Firing,Human Resources

No single federal law governs job applications. Your biggest risk is asking unnecessary questions that run afoul of federal or state laws banning job discrimination on the basis of sex, age, race, religion, national origin or disability.

But, done right, your application can be a great tool to communicate important information (such as your at-will and anti-drug policies), obtain candidates’ permission to perform background checks and collect information needed for government filings.

What's new

The Internet and e-mail make it easier than ever to apply for jobs. But legal danger lurks in switching to an online-only application system.

Why? An applicant could claim that such a system discriminates against people who don’t have computer access. On the flip side, allowing only walk-in, paper applicants could discourage members of a protected class from applying if, say, your offices are located in a predominantly white neighborhood.

Your best bet: Accept applications through all delivery methods: in person, by fax, mail, e-mail or over the Internet. Expand your search if you can’t be assured of reaching a sufficient mix of applicants.

How to comply

Start by reviewing your current employment application. If it’s several years old, it probably needs revision. Questions should relate to this central theme: “How are you qualified to perform the job?”

Keep the application general and consistent. Save the specifics for the interview.

Important point: Require every applicant to fill out an application, not just certain applicants. The reason: A standardized form completed by all applicants is your best defense against candidates who charge they were asked questions that others weren’t.

To keep your applications legally safe, follow these tips:

What to leave out

  1. Date of birth. In most cases, age is not a bona fide occupational qualification (BFOQ), which means that birth dates are irrelevant. The danger is that age discrimination is now the fastest-growing type of bias charge against employers.
  2. Citizenship or national origin. Immigration laws say you can ask for such information only after you’ve made a job offer. You can inform candidates that they’ll need proof of identity and work eligibility if offered a job.
  3. Arrest record. You can usually ask about convictions, but not arrests. Some courts say arrest records discriminate against minority applicants. Also, many states prohibit employers from asking about convictions for juvenile crimes or misdemeanors.
  4. Applicants’ height or weight. Unless height or weight is a BFOQ for the job, these questions are illegal because they can show a disparate impact on women and minorities. Also, don’t ask for a photo along with the application.
  5. Church or social organization memberships. This information could be seen as an attempt to cull information about an applicant’s religion, race or marital status—none of which is job-related. It’s OK to ask applicants to list job-related organizations.
  6. Emergency contacts. This information is relevant only after you make the hire. An unsuccessful applicant could allege that you asked for that data to figure out his or her nationality, religion or marital status.

What to include

  1. General personal data, including the applicant’s name, address, phone number and Social Security number.
  2. Education and professional experience, including schools attended and degrees earned, employment history and names of supervisors, military service and dates of service (but not military discharge status).
  3. Professional references.
  4. An “administrative use only” section, where you can record test scores or other interview-related information for internal use. Remember: Anything written in this section can be used in court.
  5. An equal employment opportunity statement (see below).
  6. A signed statement by the applicant that affirms your company’s rights. Specifically, it should: Protect your right to verify information received; affirm your intent to fire employees who provide false information on the application or during an interview; make clear that no contractual relationship exists between your company and your workers (at-will firing policy); and obtain authorization for any security or background checks. 


Sample equal employment opportunity statement:  

“XYZ company recruits, hires, trains, assigns, promotes and compensates employees without regard to race, color, religion, national origin, age, sex, marital status, disability or sexual orientation. All employment decisions at XYZ are made on the basis of merit and job requirements.”   

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