Employment Applications: What to Include and What to Avoid

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Although resumes are a valuable addition to the hiring process, it is advised that employers still use employment applications because they can provide legal and practical advantages. Some companies even reject resumes and require all job candidates to complete the company’s application. 

Why an employment application?

The primary purpose of an employment application is to ask the right questions. Those are the questions that lead to the candidate that best fits your organization or has the greatest chance of success in the current open position; that means learning specifically what skills, training, experience, achievements and behaviors make that person the best candidate for the job.

The employment application is often the first contact a job seeker has with your organization. It is the beginning of the employment relationship. The information you request from a job applicant is different than the information you will request from hired employees.

Disclaimers

It is best practice for a company to include certain disclaimers and authorizations in the application form. To avoid a wrongful discharge legal suit, include an “employment at will” statement, along with a place for applicants to sign off on their acknowledgement of this statement. 

There are no federal or state laws that require a company to include an equal employment opportunity statement on their employment application, however including this statement confirms for the applicant that the company adheres to these employment practices.

Guidelines

An application should always include a section for an applicant's signature to attest that he or she has read and understands certain policies and procedures of the employer that are spelled out on the employment application. These frequently include the fact that the employer is an at-will employer, that the employer is an equal opportunity non-discriminating employer, and any other facts that the employer wants the applicant to read and understand on the employment application.

What to avoid

The application should avoid questions that may reveal that an applicant is a member of a protected class. This includes questions about religion, age, race, disabilities, medical history, gender, marital status, and national origin, etc.  Although many equal opportunity laws do not directly prohibit employers from asking such questions on an application, these kinds of questions may be used as evidence of an employer’s intent to discriminate, unless the questions asked can be justified by some business purpose.

Background Checks

Information needed to conduct background checks should be obtained on a separate form authoring the employer to conduct a check.

Some common questions to avoid are:

  • Protected Characteristics: Federal and Ohio employers are prohibited from making hiring decisions based on characteristics such as race, color, religion, sex, pregnancy, national origin, ancestry, age, disability, genetic information, veteran status, military status or any other characteristic protected by law. Although outside the definition of protected class of “sex” the EEOC now includes gender identity and sexual orientation within that classification. 
  • Date of Birth: If there is a state imposed minimum age for certain positions, it can be asked if the candidates meet the minimum age requirement , but avoid asking for date of birth. In addition to the date of birth, stay away from questions about specific graduation dates.  If educational background is important, ask for the name of the educational institution and the degree or credentials, but no dates.
  • Marital status: Discrimination based on marital status is prohibited in many states. Wait until an individual is hired to gather information on benefits and employment forms.
  • Emergency Contact: This information is only relevant once a candidate has been extended an offer of employment, and should not be requested on the initial job application. This type of inquiry may elicit information about familial status, marital status, a domestic partnership, or other associations unrelated to the applicants qualifications. 
  • Citizenship: Employers should not inquire on an application about an applicant's country of origin, but can ask if the applicant is authorized to work in the United States. 
  • Medical Information: Avoid asking questions related to a disability, amount of sick leave taken, or workers compensation history. Both FMLA and ADA prohibit discrimination and retaliation against applicants who have exercised those rights. An employer may inquire about these areas after it has offered the applicant employment if it makes the same inquiries of all applicants.
  • Criminal History:  Enforcement guidelines issued by the EEOC recommends that employers not ask about convictions on job applications. Federal law does not prohibit employers from asking about criminal history. But, federal EEO laws do prohibit employers from discriminating when they use criminal history information.

Using criminal history information to make employment decisions may violate Title VII of the Civil Rights Act of 1964, as amended (Title VII). The fact that an individual was arrested is not proof that he/she engaged in criminal conduct. Therefore, an individual's arrest record standing alone may not be used by an employer to take a negative employment action.

Many states and cities are enforcing “Ban the Box” laws which prohibit employers from asking about or considering an applicant’s criminal background until the later stages of the application process, such as the first interview or after a conditional offer of employment has been made.

By using an application, an employer can avoid a number of potential problems in the hiring process and promote a selection process that is fair to everyone. 

HR, compliance, termination, or compensation questions?

ERC has a team of HR Help Desk Advisors to provide timely and trusted answers.

Contact the Help Desk

5 Popular Methods for Interviewing Candidates

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5 Popular Methods for Interviewing Candidates

The traditional hiring process for an employer consists of roughly three stages: collect resumes, conduct an in-person interview, and then offer the job to the most qualified candidate. However, today can be a completely different story.

More employers are using digital methods or video capabilities as a way to reduce costs and speed up the time it takes to hire a new employee.

Employers and potential hires are increasingly able to schedule, record, and review interviews via smartphone apps.

So what are some of the different ways employers are finding candidates and conducting interviews?
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How to Determine if a Job is Exempt or Non-Exempt

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exemptvsnonexemptemployees

The terms non-exempt and exempt can cause a lot of confusion for workers and employers. Exemption status determines if you receive overtime pay for working more than 40 hours in a work week. The exemptions are governed by the Fair Labors Standard Act (FLSA).

Non-exempt 

Non-exempt employees must be paid at least the minimum wage and overtime pay for any work performed over 40 hours worked in a week. This time must be paid at a rate of time and one half of their regular pay rate for each hour of overtime.

Exempt

Exempt employees are not granted the same protection under the FLSA, therefore they are paid the same dollar amount regardless of the number of hours worked in a week. Exemptions from the overtime requirements of the FLSA are just that—exceptions to the rule. They are very narrowly construed, and as the employer, you will always bear the burden of proving that you have correctly classified an employee as exempt. When in doubt on the classification of a job, it is best to make them non-exempt.

For most professions, an individual is an exempt employee if he or she meets all of the following three tests: 

  1. Is paid at least $23,000 per year ($455 per week)
  2. Is paid on a salary basis
  3. Performs exempt job duties

But how do you know if the individual performs exempt duties?  As a general rule, exempt employees tend to perform relatively high-level duties with respect to the company’s overall operations.

The most common FLSA exemptions are white collar exemptions and are broken down into five main categories, including: 

  1. Executive
  2. Administrative
  3. Professional
  4. Outside sales
  5. Computer

Other issues

There are also some other concerns to consider when determining non-exempt and exempt status.

  • Time off. Although there are exceptions, it’s usually illegal to give non-exempt employees time off instead of paying them overtime.
  • Child labor. Federal and state laws include special requirements to protect workers under the age of 18. These laws can affect the type of work, wages, and hours that an employee can complete.
  • Breaks. Employers need to make sure they follow federal and state law requirements regarding breaks, including meal breaks, for their employees.

If you have any additional questions regarding non-exempt and exempt employees, and are an ERC Member, contact our HR Help Desk or visit the U.S. Department of Labor (DOL) FLSA page at http://www.dol.gov/whd/flsa/.

By providing you with information that may be contained in this article, the Employers Resource Council (ERC) is not providing a qualified legal opinion concerning any particular human resource issue. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.  We also recommend that you consult your legal counsel regarding workplace matters when and if appropriate.

HR, compliance, termination, or compensation questions?

ERC has a team of HR Help Desk Advisors to provide timely and trusted answers.

Contact the Help Desk

5 “High-Tech” Hiring Practices to Improve Your Talent Pool

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5 “High-Tech” Hiring Practices to Improve Your Talent Pool

1. Post a job opening on an online job board

Even if you don’t have a fancy applicant tracking system internally, almost all employers, 89% according to the 2013 ERC Hiring Practices Survey are putting their job postings up on some sort of external job board website. Most of these job boards are easy to navigate and should be a matter of simply inputting the information about the job opening and maybe a few pieces of information about your organization.

If the site allows applicants to fill out an online application or submit a resume through their site and funnel that onto you, make sure you review the process from an applicant’s standpoint as well. You don’t want to frustrate potential candidates with a process that your organization didn’t even create before they even get their resume into your email box!
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Should You Be Performing Facebook Background Checks?

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performing background checks Should You Be Performing Facebook Background Checks?

When it comes to recruiting potential employees, social media has become a popular resource for finding candidates that will fit the required job skills and become a top-performing employee. But is using information from social media profiles a legal and reliable part of the recruiting process?

As reported in the 2013 Hiring Trends and Practice Survey, roughly 8% of HR specialists are using social media to pre-interview a candidate. Another 8% are also using social media for the post-offer and post-interview of a potential candidate.
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3 Surprising Social Media Uses for HR

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3 Surprising Social Media Uses for HR

When we hear "social media" and "HR" in the same sentence, it's usually in a negative context. "How can we keep employees off of social media at work?" or "I saw something bad on a candidates social media profile, what do I do now?"

But social media can also be used creatively in several areas of the HR function. Consider the following uses for social media that you may not have considered:

Employee Communications

Communicating important inner-office or organizational updates to employees often falls upon HR departments. The standard mass email can be a great medium for getting a quick message out, but what if your communications requires more collaboration, input or feedback?
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Recruiting with LinkedIn

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Recruiting with LinkedIn

In the summer of 2014, ERC hosted Kelly Royer of LinkedIn for an educational session on Recruiting with LinkedIn. Kelly shared some of her tips for finding talent on LinkedIn, as well as improving your individual and company presence.

50% Mobile. Did you know half of LinkedIn's activity comes from mobile devices?

Why use LinkedIn? Individuals use Linkedin to create an online identity, to network with other professionals, and to gain knowledge about their industry and their profession.

Passive Candidates. Most are not looking for jobs; in fact 75% of users are identified as "passive candidates", meaning they're not actively searching for jobs.
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Leveraging Employee Engagement to Attract and Retain Top Talent

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Leveraging Employee Engagement to Attract and Retain Top Talent

Pay and work conditions have always been important factors when it comes to obtaining top talent in the workplace. However, employee engagement has been shown to be one of the key factors when it comes to retaining that top talent.

Employee engagement is all about how you feel, how you are respected, how you are listened to, and how you are an integral part of the day to day operation. We talked with Dave Topor, Custom Research Manager at ERC, about employee engagement, and how companies can be sure to retain top talent.
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The Top 5 Reasons Employers Hire Interns

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benefits of internships for employers hire interns

With summer just around the corner, many employers are going through the process of hiring one or more summer interns into their organization right now. But why go through all the effort of hiring, training and supervising a short term, inexperienced employee who will probably have to leave your organization to go back to school come fall?

As it turns out there are plenty of reasons why. Here are the top five reasons cited by employers: 
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Keeping Background Checks Legal Under EEOC Guidance

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eeoc background checks Keeping Background Checks Legal Under EEOC Guidance

The EEOC (Equal Employment Opportunity Commission) and the FTC (Federal Trade Commission) published a joint publication on employment background checks in 2014. The guide explains the rights and responsibilities of employers in addition to those of applicants.

The publication addresses three different phases of background checks—before getting the background information, using background information, and disposing of background information.
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