Every step of the employment process is important and the employment application is no exception. Most employers use employment applications. It is an integral part of the hiring process; a tool that should not be overlooked.
A recent New Jersey court decision emphasized the importance of a well-written employment application. In the Rodriguez v. Raymours Furniture Company, Inc. case, the furniture store’s employment application included this statement: I agree that any claim or lawsuit relating to my service with Raymour & Flannigan must be filed no more than six(6) months after the date of employment action that is the subject of the claim or lawsuit. I waive any statute of limitations to the contrary. The court dismissed the case because Rodriguez filed his claim nine months after the alleged action.
Though the statement would not affect most federal claims, this case points out many important aspects of the employment application. First, it’s a contract and should be treated as such. This means allow the candidates ample time to complete it. Direct the candidates to read it and complete it carefully before signing.
Consistency is the key in so many human resource functions. This is no exception. Employers need to establish and adhere to a policy to consistently administer employment applications. For instance, the employer may choose to always allow prospective candidates to complete an application regardless of open positions.
The application provides the employer a tool to communicate information about the company and expectations of the employees. At-will employers typically include their at-will statement on the application.
A signed statement of the candidate will affirm the company’s rights. The application can state anyone providing false information will be rejected from consideration or terminated from employment. A resume does not provide that protection.
Some applications include an authorization for background checks. However, best practice is a separate document detailing what types of information the employer is seeking and a clear authorization to release. Should a third-party conduct the background screen, the Fair Credit Reporting Act (FCRA) rules apply.
The FCRA governs the use of all consumer reports and provides specific protections for consumers. The Civil Rights Act prohibits employment decisions based on credit history or criminal background checks which have a disparate impact on protected groups. Only solid, specific business necessity can support using these checks to make hiring decisions in states which allow them. Several states prohibit the use of one or the other of these two screening tools.
Finally, read your application. Some ask clearly discriminatory information such as birth date, national origin, arrest record (vs. conviction), church and social organizations. Asking for emergency contact on the application is also asking for trouble. If the question doesn’t help you determine who to hire, leave it off.
What employers should do:
1. Make sure you are consistently using an employment application to vet candidates.
2. Audit your employment application to ensure it doesn’t ask for potentially discriminatory information.
3. Consider whether to request information about past convictions based on the positions in your company.
4. Consider whether to include an at-will policy statement.
5. Include an applicant’ s signature attesting the information provided is true and the company’s intent to reject candidates or fire employees who provide false information.