Drafting Employment Applications

A company’s employment application is often one of the first impressions an applicant has of a company. For that reason, it is beneficial for an employer to make a positive impact upon the applicant by having an application that looks professional. In addition to looking professional, the application must seek sufficient facts to provide the employer with the requisite information it needs to evaluate the applicant. When eliciting such information however, employers must be mindful of the numerous employment laws that affect the application process.

Some employers design their own applications. Others obtain their forms from stationary stores or colleagues at other companies. Whatever the source of the application form, it is important to ask your attorney to review the form before it is used since illegal inquiries on the application may serve as evidence of discrimination. The ever-changing law regarding employment may make your current application out-of-date. Meaning, your application likely contains unlawful questions if it has not been reviewed or revised in the past several years.

In Massachusetts, there are various topics that must be affirmatively addressed on an application. For example, the Massachusetts lie detector statute requires that each application contain the following notice: “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.”

Massachusetts law also mandates that employers provide applicants with the ability to include volunteer work on the application. Generally, this can easily be accommodated by including on your application, (under the past experience section): “you may include volunteer positions if you wish.”

In addition to the mandatory language above, your application should include a provision that indicates the applicant certifies that all information provided on the application or attached resume is true and correct. It is also suggested that the application state that any misrepresentation is grounds for discharge whenever discovered.

It is a good idea to include a statement on the application that the applicant authorizes and holds harmless the employer to check and verify the correctness of the information provided on the application and resume. Further, it is recommended that the application state that all employment is on an at-will basis and the employee is allowed to quit or be terminated at any time.

Certain questions cannot be asked on the application. Employers may not request from an applicant information concerning: (1) an arrest, detention, or disposition regarding any violation of law in which no conviction resulted; or (2) a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace; or (3) any conviction of a misdemeanor where the date of the conviction or the completion of any incarceration, whichever date is later, occurred five or more years before the date of completing an application for employment – unless the applicant has been convicted of any offense within the five years immediately preceding the date of such application for employment.

Any criminal record inquiry on an application must be accompanied by a “sealed record” statement. Meaning, if an applicant has a sealed record on file with the commissioner of probation, the applicant may answer “no record” with respect to an inquiry relative to prior arrest, criminal court appearances or convictions.

According the Massachusetts Commission Against Discrimination, an application cannot seek information regarding: (1) whether an applicant or his or her spouse or parents are naturalized or native-born citizens, or the date the applicant or his or her spouse or parents acquired citizenship; (2) the birthplace of an applicant or his or her parents, spouse, or other close relatives if outside the continental United States; (3) the lineage, ancestry, or national origin of an applicant; (4) the religion or religious obligations of an applicant or religious holidays observed by an applicant; (5) the maiden name of an applicant’s wife or mother; (6) the location of any places of business of relatives; (7) foreign military experience; and (8) organizations of which an applicant is a member, if the nature, name, or character of the organization indicates the religion, race, or national origin of its members.

Employers may not make inquiry of any questions regarding admission of an applicant to a mental health institution, provided that if an applicant had been admitted to a mental institution, the applicant has been discharged and is no longer under treatment directly related to such admission.

The application may not seek information regarding whether an applicant is disabled or about the nature or severity of any disability. Likewise, an application cannot question whether the applicant needs reasonable accommodation or require the applicant to disclose his health insurance status or that of their spouse, dependents, or other family members. To many employers’ surprise, the application cannot make any pre-employment inquiry regarding an applicant’s workers’ compensation history.

Overall, the application process is one of the first stages in which an employer exposes itself to potential liability. As such, it is not only recommended, but imperative that you have your current application reviewed and possibly re-drafted by an attorney since the law is constantly changing. Since there is a strong likelihood your business application may be in disparity with the law, save time, litigation cost and aggravation by having it reviewed.