Top 10 Mistakes Employers Make in Employment Applications

Author:Ms Jennifer Cotner
Profession:Ogletree, Deakins, Nash, Smoak & Stewart
 
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Employment applications—almost every employer in the country uses them. They can seem innocuous, but they contain a number of minefields of which employers should be aware. A general theme of federal and state laws, regulations, and guidance is that employers should avoid asking an applicant questions that elicit information that cannot be considered in making a hiring decision. Below is a list of the top 10 mistakes to avoid in application materials:

Including any disability-related or medical questions. Employers should steer clear of questions related to whether an employee is disabled or has a medical condition. Any such inquiry would violate guidance from the U.S. Equal Employment Opportunity Commission (EEOC) and possibly the Americans with Disabilities Act (ADA) and similar state laws. If an employer asks an applicant such a question, the EEOC or a court may presume prohibited information was a factor in hiring. Not including an at-will disclaimer. Employers may want to inform applicants that the application is not intended to and does not create a contract or offer of employment and state that, if hired, employment with the company would be on an at-will basis and could be terminated at the will of either party. This disclaimer is helpful to avoid any claim that the application is an offer of guaranteed employment or to defend a claim of breach of contract if the employee is not hired or is later discharged. Not including a non-discrimination statement. Employers may want to inform applicants that the company is an equal opportunity employer (i.e., through an EEO statement) and does not discriminate in hiring based on federally-protected classifications (i.e., race, color, national origin, ancestry, religion, sex, disability, veteran status, age (40 or over), or genetic information). Employers may want to add any additional protected classifications under state or local law (e.g., sexual orientations or marital status). Requesting graduation dates in the education section. Asking applicants for graduation dates (usually in the education section of the employment application where it inquires about degrees obtained) may lead to a finding of discriminatory intent on the basis of age under the Age Discrimination in Employment Act (ADEA) or state law—particularly if the employee's graduation date has no bearing on the qualifications for the position—as it enables the hiring manager to guess the age of the applicant. It is appropriate to...

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