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Dos and Don'ts of Employment Applications

November 5, 2017
 
The first formal contact many individuals have with your company is the employment application. So, it’s important to ensure that your application asks only the necessary and legal questions you need to make a hiring decision.
 
Employers should regularly review and revise their applications to keep abreast of changes in state and federal law. Failure to do so invites litigation and makes a company appear unconcerned with compliance or unaware of applicants’ rights. Here is a list of dos and don’ts.
 
Year graduated from school – Any question that asks when an applicant completed a certain event, such as “when did you graduate from high school” or college, raises age-discrimination issues. Instead, make sure your application asks whether the applicant completed a particular educational threshold, or if not, how many years of school at that institution did they complete. The only age question to ask is whether the applicany is at least 18 years of age. The answer allows an employer to determine if the child-labor laws apply. 
 
Criminal record – Even though the Massachusetts Criminal Offender Record Information (CORI) law was amended in 2010 to “ban the box,” (questions about prior criminal convictions) we still occasionally see applications that seek this information.  Information on the CORI law is available from the commonwealth
 
While the law includes two exceptions allowing employers to ask about criminal histories on the initial job application, most employers may not use them:  
  • If the applicant is applying for a position for which any federal or state law or regulation creates a mandatory or presumptive disqualification based on a conviction of certain criminal offenses; or 
  • the employer is subject to an obligation under any federal or state regulation not to employ persons in one or more positions who have been convicted of certain criminal offenses.
 
Employers interested in performing criminal background checks should develop a supplemental employment application in which the applicant signs off that s/he allows the employer to perform a CORI check following the job interview. The Massachusetts Commission Against Discrimination (MCAD) has a CORI compliance fact sheet available to help employers understand their rights and limitations.
 
Social security number – In light of the Massachusetts data-security law, no employment application should request an applicant’s social security number. We recommend that you request the social-security number in a separate form tied to background checks. Once the person begins working for you, you may request the number for necessary government compliance forms.  
 
A non-discrimination statement – Applications should make it clear that the employer obeys all anti-discrimination laws and that protected class status will not impact the hiring decision. 
 
Marital or familial status – Any request for this type of information will violate the preceding statement about obeying anti-discrimination laws. For example, any question that asks for a woman’s maiden name or for her to identify herself as Miss, Mrs. or Ms. should be removed.
 
Citizenship – Many non-citizens have the legal right to work in the U.S. so an application should not include any questions that would appear to limit the prospects of non-citizens (e.g. green card holders, special visa holders such as H-1B or H-2B, asylees or refugees). The better question would be “Do you have the legal right to work in the U.S? Are you able to provide proof of that?”
 
Lie-detector statement- Massachusetts General Law (MGL) Ch 149, §19B requires all employment applications to include the following language:
 
''It is unlawful in Massachusetts to require or administer a lie detector test as a condition of employment or continued employment. An employer who violates this law shall be subject to criminal penalties and civil liability.''
 
The statement should be placed close to where the applicant signs the application. 
 
Signature statement – Such statements compels the applicant to sign and affirm that all of the information included in the application is true. This may be crucial to an employer when questioning the truth of an applicant’s statements, such as education level attained, a specific technical qualification or previous work experience. 
 
Pay equity requirements – As of July 1, 2018 no Massachusetts employment application may ask for an applicant’s wage history. If you currently ask this information, make sure it is off the application by the effective date. Also, don’t rely on an attached statement informing the applicant to ignore the wage history question as the applicant is likely to answer all questions on the application, especially ones about wages, leaving you with information that is illegal to have. 
 
Finally, don’t make the mistake of adopting any old generic application off the web.  Ensure that someone reviews the application or helps you develop a new one prior to using it during the hiring process.  
 
Any employer interested in purchasing an application may contact AIM. 
 
Please contact the AIM Employer Hotline at 800-470-6277 if you have questions about this or any other HR-related issue.  
 
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