Job Applications
Is
Your Application Legal?
Think
about it! Questions that are not job-related such as where a person was born,
marital status, what kind of transportation the person uses, etc., give you
absolutely no help in making the best hiring decision. If you ask these types of
questions, you are setting yourself up for discrimination claims.
The
key to lawful employment inquiries is to ask only about those areas which will
provide information about the person’s ability to do the job, with reasonable
accommodation. Do not assume that applications are legal because you bought them
at a reputable store. You are responsible for the legality of your applications
and keeping them updated as laws change. There
are currently cases pending with the Montana Human Rights Commission concerning
discrimination and illegal applications. More and more applicants are asserting
their rights. Now is a good time to
closely scrutinize your application.
You
can require additional materials be submitted with your application as
appropriate such as: resumes; transcripts, licenses and certificates (or
copies); and answers to supplemental questions.
What Are Supplemental Questions ???
Supplemental
questions are inexpensive tools employers can use to screen large numbers of
applicants quickly and consistently. Answers are screened against suggested
responses. Applications without completed supplements can be eliminated. Based
on ratings, the applicants can be grouped, for example: best qualified;
qualified; and did not meet minimum qualifications. Then, additional tools such
as job-related testing (typing, 10-key, written tests, agility, etc.),
interviews and reference checks can screen the best qualified.
Ø
Develop
questions and determine acceptable answers before recruiting that will provide
the kind of information you are seeking.
Ø
Ask
questions about specifics – job duties, knowledge, skills and abilities found
in your job description. Questions about past experience rather than theoretical
questions usually result in more valuable responses.
Ø
Devise
a rating scale, assigning an appropriate weight to each question relative to the
importance of the duty being assessed.
Recommendations
for writing supplemental questions include the following:
Limit
to 3-5 questions for most jobs limit responses to no more than 300 words for most questions;
let applicants know if their written communication skills will be
evaluated; avoid overly specific,
in-house terminology or procedures in suggested responses.
Let Applications and Job Descriptions Help
Complete job
descriptions and applications that comply with
ADA
(Americans with Disabilities Act) allow applicants to self-screen and eliminate
the need to ask questions which discriminate.
Clearly state your
requirements as an essential function in the job description. For example, some
essential functions might be:
Ø
Requires
extensive overnight travel (or overtime, weekends).
Ø
Requires
standing for long periods of time.
Ø
Requires
regular attendance.
Ø
Requires
ability to lift 50 lbs. regularly.
Then,
on your application ask, “Can you perform the essential functions of the job
you are applying for, with or without reasonable accommodation?”
Also
to comply with
ADA
, it’s a good idea to make a statement on your application such as, “If you
require reasonable accommodation to ensure full participation in our recruitment
and selection process, please attach a description of the desired
accommodation.”
To
avoid having more than one application for different positions with different
requirements you can: 1) cross out areas that aren’t relevant to a particular
job or 2) use wording in your application that says, “If required (see job
description) for the position for which you are applying, do you
have…”
Consider
using a signature/release statement such as: “My signature below certifies
that all information contained in this application is true, correct and complete
to the best of my knowledge and contains no willful falsifications or
misrepresentations. Falsifications or misrepresentations will disqualify me from
consideration for employment or, if hired, will be grounds for termination. I
give my permission for you to contact my past employers for references.”
Other
information you might want to have on your employment application includes the
following:
Ø
Equal
Employment Opportunity (EEO) statement
Ø
Affirmative
Action Policy statement
Ø
Requirements
for I-9 documentation after hire
Job Application Inquiries
The
Havre
Job
Service
Workforce
Center
has a generic, legal job application that can be customized with your business
name and address. Contact the Job Service for assistance with customizing your
job application.
Identification:
Can ask name (and if person has worked under other names), address, phone
number, Social Security number, and type of work desired. Cannot ask questions
indicating marital/family status or plans. Cannot ask for photograph.
Age:
Cannot ask questions indicating age, either directly or indirectly. Can
ask if person is the minimum age legally required to perform the job.
Citizenship:
Ask only if
U.S.
citizenship is a bona fide requirement of the position. Can ask if person is
eligible to work in the
U.S.
National
Origin:
Cannot ask any nationality, ancestry or native language questions. Can ask about
foreign languages if this is a requirement of the job.
Group
Memberships:
Cannot ask questions regarding social or political groups. Can ask about
membership in professional, trade, or other job-related organizations.
Religion:
Cannot ask about religious affiliations or religious holidays observed.
Race:
Cannot ask questions about race or color (including hair and eye color).
Sex:
Cannot ask anything about gender or gender preference.
Disabilities:
Can ask questions (not phrased in terms of disability) about the ability to
perform job-related functions. This includes asking applicant to describe or
demonstrate, with or without reasonable accommodation, how s/he will perform
job-related functions.
Arrests/Convictions:
Cannot ask about arrests but can ask questions about felony and misdemeanor
convictions, provided they relate to the job being applied for and the employer
makes clear that a conviction is not an automatic disqualifier. (Factors such as
age, time since offense, seriousness, nature of violation, and rehabilitation
should be taken into account.)
Military
Service:
Only ask about military experience as it relates to the job applied for. Cannot
ask about: type of discharge; military reserve duty obligations; or disciplinary
record while in the service.
Physical
Requirements:
Cannot require applicants to take a medical or physical exam before hiring. Can
require job-related physical agility test prior to hiring if all in that job
classification are required to submit to the same test.
Job
Experience:
Can ask questions about former employers including dates, jobs held, duties,
skills, promotions, and reasons for leaving. Should include volunteer
experience.
Education
and Training:
Can ask questions about education and training, degrees, and professional
licenses only as they relate to the requirements of the job. Should not ask
dates of attendance or graduation.
References:
Can ask for job or character references that are not discriminatory. Should ask
for permission to contact references. Your best source of references are people
who have actually supervised the applicant’s work. See reference check form.
Licenses,
Equipment and Tools:
Ask about only as relative to the job applied for.
Lie
Detector/Drug Tests:
Cannot require as a condition for employment any person to take a mechanical lie
detector test. Cannot require as a condition for employment any person to submit
to a blood or urine test – except for employment in hazardous work
environments; jobs primarily concerning security, public safety, or fiduciary
responsibility; or jobs involving commercial transportation.
Employers
actually providing affirmative action plans and data regarding minorities,
females, disabled persons, and military veterans can ask applicants to volunteer
this information but should separate this information from the application
hiring process.
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