National Clothesline

My law firm celebrated its 17th anniversary this year. It was also the 17th consecutive year we have not used an employment application. None of the lawyers or office personnel were required to fill out an application, and we do not have walk-in applicants. We have, however, had a model employment application for clients the entire time.

Employment applications are a necessary evil for most employers, and truth be told, we should probably require non-legal job applicants to fill one out. First, government agencies and courts expect to see an application in every personnel file. Second, the application can give valuable information, such as former employers and education. Third, an employment application can give subtle clues about an applicant’s personality, especially where there is missing information.

If you are like most employers, you use an employment application you inherited from the people you bought the business from, bought at an office supply store, or downloaded from a website such as www.kollmanlaw.com. It was probably never reviewed by an attorney, and if it was, it’s been years since it was last examined. If you are not interested in having it looked at by an attorney, I suggest you examine it yourself to insure that it does not contain any glaring employment law problems.

Before I tell you what to exclude from an application, you should focus on what should be in an application.

First, you want to know the skills the employee has that are relevant to the job. Second, you want to have a work history to determine if the applicant’s experience makes him or her qualified for the job. Third, you want to have references, preferably former employers or supervisors. Fourth, you want to have the usual legal disclaimers such as “if you’re hired, you are not guaranteed lifetime employment.” (No, that’s not the actual language.) Fifth, you may need language required by state law, such as lie detector language in Maryland. Sixth, you want the employee to acknowledge and agree, by his signature, to background checks, drug testing, and other pre-employment inquiries.

If you need other information, by all means ask for it. If you properly require a particular certification or degree, ask for the details, including the dates they were received.

Of course, what should not be in an employment application is the stuff of legends. You cannot ask the applicant’s race, sex, physical or mental limitations, age, and so on. You also cannot ask the employee about characteristics that might disclose this information. For example, asking for eye color, weight, height, and so forth might disclose race, sex, national origin, and so forth. Besides, if you do not need that information to make a decision, you should not include it in an employment application. Even if that information is relevant, it will readily come out during a job interview.

Remember, if certain information is requested in an application, there is a presumption that it was considered in the hiring decision. So, if you ask an employee if he has any disabilities, he answers “yes,” and you disqualify him for other reasons, there is still a chance he can convince a judge or jury that his disability was the disqualifying reason. Disabilities, as you may know, can be considered after a job offer is made to determine if the particular disability makes the employee unqualified.

A prospective employer can ask about criminal convictions, but questions about arrest records are generally prohibited. Questions about organizations the employee belongs to may be interesting, but what do you do if the applicant says “Weight Watchers and the Rainbow Coalition?” Again, the person’s interests can be discussed during the job interview.

Again, if you do not need the information being requested, consider removing it. When finished, you should have a lean document that allows you to conduct a thorough interview and deal with the legal issues related to hiring, drug testing, and background checks.

Finally, employment applications need to be kept for at least six months. I recommend you keep them for three years, then dispose of them. An active employee’s application, on the other hand, should be kept for at least three years after he or she leaves the company.

If you use an employment application, make sure it serves your purpose, without creating potential legal problems. It should take no more than 15 minutes for a labor attorney to review an application and confirm that it does, in fact, comply with state and federal law.