What everyone needs to know about that Employment Application and the law

12/1/2018

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Job Search Advice Dec. 1st 2018

What everyone needs to know about that Employment Application and the law

The law and the job application forms

You’ve spent hours writing your résumé — or may have invested hundreds of dollars hiring a professional résumé 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 résumé cover everything the employer needs to know?

Employment Application Basics

Despite all the changes in résumé 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 résumé (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 résumé, 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 résumé, 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.