How to Reduce Legal Risk in Your Employment Applications

Employment applications often seem to be a neglected area of employment law compliance efforts.  There are several application questions that were once commonplace, but have become problematic because they increase the risk of claims and, in some cases, have been flatly prohibited.  Below are five suggestions for revamping your company’s template application.

  1. Reduce the risk of identity theft and invasion of privacy claims by eliminating Social Security Numbers from the application.

Employment applications are often not as controlled as other personnel documents, and are therefore more susceptible to being misused for identity theft.  Consider removing questions regarding Social Security Numbers from applications and reserving such questions for background-check forms and/or tax forms that must be completed during onboarding.

  1. Stay away from questions that would tend to reveal the applicant’s age.

Failure-to-hire claims based on age are on the rise, and many of them include the allegation that the company refused to consider or hire the applicant based on age-related information in an application or resume.   In fact, there is rarely a need to know age at the application stage.  Reduce risk by removing questions asking for the applicant’s birthdate, plus questions that would generally tend to reveal age, such as the year in which the applicant graduated from school or was discharged from the military.

  1. Beware of arrest/criminal history and salary-history questions.

Much has been written about the increasing number of state and local laws that prohibit criminal-history inquiries (so-called “ban the box” laws) or salary-history inquiries at the pre-offer stage.  If you employ people in multiple jurisdictions, or simply don’t want the administrative burden of keeping up with the passage of such laws in your jurisdictions, consider removing criminal- and salary-history questions from the application.  In all jurisdictions with ban-the-box laws, you can currently make criminal-history inquiries after a conditional offer has been made.  In some jurisdictions with salary-history bans, you can make salary-history inquiries after a conditional offer, and in some, not at all.

  1. Focus on eligibility to work in the U.S., not citizenship.

Some employers are not aware that it is unlawful to refuse to hire or otherwise discriminate against applicants who are not U.S. citizens but are nonetheless authorized to work in the U.S.  To reduce the risk of discrimination claims, eliminate citizenship questions on employment applications and ask instead whether the applicant is authorized to work in the U.S. (which you would be checking anyway when the applicant begins employment and completes an I-9 employment eligibility form).

  1. Make clear that false information is grounds for termination.

False information in an employment application or resume is a problem not only because it is dishonest, but because it can falsely suggest that an employee is qualified for the position when in fact he or she is not.   Use the employment application to clearly put applicants on notice that providing false information is grounds for revocation of an offer or termination of employment.  By doing so, you may save yourself the headache of having to later terminate an employee who you later learn has misrepresented himself or herself.  Or, if you hire someone who you later learn has provided false information, the grounds for termination are likely stronger if you have expressly warned the employee of the consequences in advance.

The Bottom Line for Employers

Making these simple modifications to your template employment application can go a long way to reducing the legal risk in the hiring process.