Question:

I have a small company that has always hired employees by accepting resumes. I think we could simplify our hiring process by using a standardized application form, but I am concerned about being sued for asking the wrong questions. Can you give me guidance?

Answer:

Last week’s column discussed job interview guidelines. In addition to being careful in interviews, you need to be aware that a poorly written employment application can create liability under Federal and State anti-discrimination laws. For that reason, you should avoid adopting boilerplate forms from other states, since California anti-discrimination laws are stricter than those in most other states. A well-crafted employment application can operate as an effective information-gathering tool, and may actually protect the employer from certain types of claims.

A good employment application will include affirmative statements, which should be prominently located on the application form. Next to each statement should be an area in the margin where the applicant is asked to place initials confirming that the statement has been read, understood, and agreed to.

One suggested statement is that all answers contained in the application are true, and that any omissions or false statements are grounds for rejection of the applicant or termination of employment. Recent case law has held that false statements can be used as a defense to wrongful termination lawsuits, even where the statements were not discovered to be false until after the contested termination occurred.

Another suggested statement is that any future employment is “at will” and that any contrary arrangement must be agreed in writing in order to be binding. Although all employment in California is presumed to be at will, employment contracts can sometimes be implied from actions taken by the employer during the course of the employment. This statement bolsters the presumption of at will employment and helps the employer defend claims of implied contract.

Very careful phrasing of application questions, in order to avoid allegations of discriminatory intent, will also protect you as the employer. State and Federal law prohibits an employer from directly or indirectly asking about information that can be used to make illegally discriminatory employment decisions. Employers may not discriminate on the basis of race, religious creed, national origin, ancestry, physical or mental disability, medical condition, marital status (including pregnancy, childbirth, related medical conditions, gender, and gender identity), age, sexual orientation, or any other protected category. As a result, questions leading to information about any of these facts may not be asked in an employment application.

The California Department of Fair Employment and Housing (DFEH) Pre-Employment Inquiry Guidelines contain a useful table showing acceptable and unacceptable questions. The difference can be subtle. For example, emergency notification information is acceptable only if there is no inquiry regarding the relationship of that person to the applicant. Similarly, while asking about the applicant’s level of education may be appropriate, asking about the year of graduation may be interpreted as probing the applicant’s age.

Where the information sought is needed for the applicant to perform essential job functions, the DFEH generally recommends a post-employment verification rather than a pre-employment question. For instance, being at least 21 years old is an essential job function for bartenders, and therefore the employer cannot simply ignore the age of the applicant. The DFEH recommends that the employer state that hiring is subject to verification of eligibility of legal age, rather than ask the applicant’s age prior to hiring. This approach complies with the law and minimizes potential claims of illegal age discrimination by applicants age 40 or older. Alternatively, the application can ask whether the applicant is at least 18 or 21 years of age, if there is a minimum age requirement for the job.

Although an employment application form can request information about unsealed and unexpunged criminal convictions, information cannot be sought about arrests that did not result in conviction, or about referral to or participation in any type of misdemeanor diversion program. Convictions for possession of marijuana that occurred more than two years prior to the date of application are also protected from disclosure. Applications seeking information about criminal convictions should prominently display a disclaimer informing applicants of the types of related information that need not be disclosed.

Sample employment application forms can be obtained from the California Chamber of Commerce, or from various California legal form purveyors. Before implementing such a form, it is probably wise to have an attorney who specializes in employment law review the form. All employment applications should also be reviewed on a regular basis to make sure they comply with changing Federal and State law. For more information visit the DFEH website at
http://www.dfeh.ca.gov/DFEH/Publications/PublicationDocs/DFEH-161.pdf.

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