https://www.market-connections.net/blog/employment-application
The law and the job application forms
You’ve spent hours writing your
resume — or may have invested hundreds of dollars hiring a professional resume
writer — and maybe even drafted a cover letter to accompany it. You now have
all you need to apply for a job opportunity that caught your attention — or do
you? At some point in the process, you’ll be required to complete a job
application, which may seem redundant. After all, doesn’t the resume cover
everything the employer needs to know?
Employment Application Basics
Despite all the changes in resume
content and style — as well as how one looks for work and applies for jobs —
one constant remains: The employment application is an essential part of the
hiring process. From the employer’s perspective, the application serves a
number of purposes that are not addressed in a resume (and optional cover
letter). These may vary, depending on the nature of the job and the preferences
of the company; however, the following always applies:
• An
application is a legal document. Unlike a resume, you are required to sign an
application, confirming that all the information you included is accurate and
that you have not omitted anything.
• An
application becomes part of your permanent file once you are hired. Both state
and federal employment laws require employers to retain employment applications
for at least one year.
• At a
minimum, an application requires you to provide information sufficient to
demonstrate that you are legally permitted to be employed. Furthermore, an
application enables an employer to request information you would not typically
include on your resume, such as contact information for immediate supervisors,
reasons for leaving, or professional references.
• The
employment application is not a standardized form, so every company may create
its own as long as it adheres to regulations set by the government.
That last point is quite complex,
sparking debates about what are — and are not — lawful questions, and leaving
jobseekers confused and anxious.
Current Regulations
In earlier decades, almost any
question was acceptable. It was not unusual to ask the applicant’s date of
birth, marital status, or citizenship. Things that were once okay are now
prohibited by numerous federal laws that turned the tables in the applicant’s
favor. Under these laws, employment applications/employers cannot inquire about
the following:
• Race, religion, gender, and national origin:
Title VII of the Civil Rights Act of 1964 prohibits direct — as well as
indirect — questions that allude to race, gender, and ethnicity. Inquiries into
color of eyes/hair; whether the applicant is married, single, divorced, or
separated; number and ages of dependent children; requiring a prefix (Mr.,
Mrs., Ms., or Mrs.); or questions about the observance of religious holidays
are all unlawful. The anti-discrimination provision of the Immigration Reform
and Control Act prohibits employers from discriminating against an applicant
because he or she is not a U.S. citizen. The Form I-9, rather than an
employment application, is the appropriate forum to determine an applicant’s
citizenship status.
• Age: The Age Discrimination in
Employment Act of 1967 protects employees 40 years of age and above. It is
permissible to ask an applicant if he or she is under 18 and, if so, to state
his or her age (to ensure the applicant meets minimum age requirements of the
job and/or to ensure the employer does not accidentally violate state law
regarding the employment of minors regarding hours worked or certain work
responsibilities). However, it is unlawful to request a date of birth or
include the specific question, “How old are you?” Unfortunately, one can
roughly calculate an applicant’s age by asking when he or she graduated from
high school.
• Disabilities and medical conditions: The
Americans With Disabilities Act (ADA) of 1990 prohibits any inquiries about
past or current health problems and medical conditions, disabilities, or
on-the-job injuries. Even asking for the applicant’s height and weight is considered
unlawful, as it may discriminate against certain demographic groups.
As you can see, it’s been more
than 25 years since any significant regulations were put in place to protect
job applicants from discrimination. Other employment application practices that
are still in place include inquiries about an applicant’s criminal history,
credit standing, and salary history, all of which can negatively impact a
jobseeker. Fortunately, there are grassroots initiatives taking hold, and new
regulations being adopted at the federal, state, and municipal level all across
the country.
Applicant Credit Checks
The Fair Credit Reporting Act
(FRCA) is a federal law that governs how a credit reporting agency handles your
credit information. It is designed to protect the integrity and privacy of your
credit information. The FRCA permits employers to request credit reports on job
applicants. A 2010 study from the Society of Human Resource Management (SHRM) estimated that 60 percent of companies
checked some (or all) job applicants’ credit reports.
Federal law permits employers to
use credit history as a basis for denying employment and even rejecting any
applicant who refuses a credit check. When applying for jobs, it is important
to know your legal rights regarding credit checks.
Employers using credit reports to
screen job applicants must do the following:
• Obtain your
written permission to request a credit report. The FCRA requires the notice to
be “clear and conspicuous” and not mixed with other language. Read each
application carefully and pay attention to what you are signing.
• Notify you
before they take “adverse action” (in this case, failing to hire) based in
whole or in part on any information in the credit report.
• Give you a
copy of the credit report and a written summary of your rights.
• Provide you
with an opportunity to dispute the information contained in the report
(typically three to five business days) before making a final decision.
Potential employers see a
modified version of your credit report. Information that might violate equal
employment regulations — such as birth year and marital status — is omitted, as
is your credit score and account numbers.
As of February 2013, eight states
(California, Connecticut, Hawaii, Illinois, Maryland, Oregon, Vermont, and
Washington) have passed legislation to restrict the use of credit checks in
employment, and dozens of additional cities and states have introduced bills to
do so.
At the same time, however, these
laws include numerous exemptions that allow certain employers to continue
conducting credit checks — even when there is no evidence that credit history
is relevant to job performance. Check your state’s labor department or your
city government to find if you are covered by any applicable laws.
The Equal Employment for All Act,
introduced to Congress in 2013, would amend the FCRA to prohibit employers from
considering credit reports in the hiring process, except for jobs that require
a security clearance, are in the public sector, or are related to financial
services. As of November 2018, that bill continues to languish in the House
Financial Services Committee.
In the meantime, there are things
you can do to protect yourself:
• Check your
credit report before you begin applying for jobs. You are entitled to one free
copy of your credit report every 12 months from each of the three nationwide
credit reporting companies. Order online from annualcreditreport.com, the only
authorized website for free credit reports, or call 1-877-322-8228. You will
need to provide your name, address, social security number, and date of birth
to verify your identity.
• Flag
negative-yet-accurate information by contacting the credit bureau and asking to
attach a 100-word explanation to your report of the extenuating circumstances
that led to the negative situation.
• Give your
permission, when requested, to access your credit report. Unless you live in
one of the states mentioned (California, Connecticut, Hawaii, Illinois,
Maryland, Oregon, Vermont, and Washington) and
are in an exempt category, you have a greater shot of being shown the door if
you refuse the employer access.
• Don’t panic.
Even if your credit report contains some negative information, you’re not necessarily
out of the running. Only 10 percent of employers reported on a SHRM survey that
a clean credit history was the most important variable in deciding whether to
hire someone, and 80 percent of companies still hired candidates with damaging
information on their credit reports.
Criminal History
As of 2014, nearly 90 percent of
U.S. employers asked job applicants to reveal information on an employment
application about their criminal histories — have they ever been arrested
and/or been convicted of a crime — but the tides are turning.
As the national movement to
improve fairness in hiring grows, currently 36 states, the District of
Columbia, and 150+ cities and counties have adopted “ban the box” laws, which
mandate the removal of criminal history questions from employment applications.
These laws help the estimated 33 percent of adults with a criminal past get a
fair shot at finding work by delaying inquiries about arrests and convictions
until after the employer considers the applicant’s qualifications and
determines whether he or she is suited for the job.
Currently, there is no federal
“ban the box” law, with a bill to pass the Fair Chance to Compete for Jobs Act
of 2017 stalled in Congress. Because of this, there is a lot of disparity and
confusion about what laws/policies exist and where they apply. In some
locations, these laws apply only to public government positions; elsewhere,
they apply to both private and public employers.
To further compound the issues,
there is little consistency in stipulations for when background checks can be
used in the applicant screening process, even in places where fair-chance laws
are in place. For employers with a presence in multiple states, each location
is responsible for complying with local laws, even if these conflict with the
company’s existing hiring practices.
Salary History
Capitalizing on the “ban the box”
movement, some state and local governments are adopting laws and regulations
that prohibit employers from requesting salary history information from job
applicants, as well as preventing asking the minimum salary an applicant is
willing to accept. This growing trend is part of a push to fight wage
discrimination and eliminate or reduce the gender pay gap.
Four states (Delaware, Louisiana,
New Jersey, and Oregon) as well as Puerto Rico led the way by enacting
statewide bans for public employers in 2017, with California, Illinois,
Kentucky, Massachusetts, Michigan, Missouri, Vermont, and Washington passing
laws in 2018. Laws are set to go into effect in Connecticut and Hawaii in 2019.
More than 20 states have proposed legislation prohibiting salary-related
questions.
In February 2017, Philadelphia
became the first city in the country to ban private-sector employers from
asking job applicants about their salary history. Under this law, employers can
be penalized if they ask salary questions on applications and during
interviews. In October 2017, New York City joined Philadelphia in banning
public and private employers from asking an applicant’s pay history. Similar
laws went into effect in San Francisco in July 2018.
What’s Next?
As privacy concerns grow and
anti-discrimination issues continue to rise, employers and jobseekers are
challenged to keep pace with changes in what information is lawful and unlawful
to request during the application and screening process.
Currently, employers are
permitted to ask applicants in all states for their social security numbers;
however, New York, Connecticut, and Massachusetts require employers to put
safeguards — like encryption — into place for online applications to protect
the privacy of jobseekers.
Employers are encouraged to ask
themselves what information is essential to screening and qualifying the best
candidates. And jobseekers are challenged to ask themselves how much personal
information they are willing to share to get the job. The answers are
continually changing.
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