July 16, 2018

The Internet has changed the way that employers recruit employees. In addition to traditional means of recruitment, including newspaper advertisements and employee referrals, the internet allows employers to easily reach thousands of potential applicants by posting job vacancies on company websites and job boards (e.g., Career Builder).

However, the increased access to applicants can also result in companies being inundated with applications from unqualified candidates, making it more difficult to find good candidates. Accordingly, for employers considering posting job vacancies on the Internet, careful attention should be paid to drafting a job posting to attract, and aid the employer in identifying qualified candidates. A well-written job posting may take some time to create, as it should neither be too general nor too specific. For example, the description of the opening should include a tailored list of the skills for the position that an applicant must have so that unqualified candidates are discouraged from applying.

However, only the necessary skills should be listed, because including skills that can easily be learned on the job may result in an otherwise qualified candidate choosing not to apply for the opening. Furthermore, in order to try to limit applicants to qualified candidates, employers should consider posting job openings on smaller websites – including industry specific websites, websites limited to certain geographic areas, or local college or university job boards. Of course, employers should refrain from posting job openings exclusively on a single site that is only targeted to a select group of individuals. For example, posting a job listing on a website for a women’s organization and stating that only resumes provided in response to the listing will be considered may open the employer up to criticism, and possible legal claims, that the recruitment effort is meant to target only female candidates (i.e., is discriminatory).

Therefore, while online recruiting is a valuable tool for employers, the efforts of the employer will determine how useful it can be to a job search. Employers who invest time in writing an informative and representative job posting and in choosing the website(s) for the posting will likely increase their ability to identify desirable candidates.

B. ESTABLISHING WHO IS AN “APPLICANT”

It may seem trivial, but defining what will be considered an “application” by an employer, and thus who will be considered an “applicant,” may be important in defending against discrimination in failure-to-hire charges and lawsuits. In addition to the age-old methods of providing applications by hand-delivery or mail, individuals now sometimes have the options of faxing a resume and/or application, as well as sending an application or submitting a resume via e-mail. For many employers these varied methods of delivery may create a conundrum.

What exactly should an employer define to be an official application that is entitled to consideration for a position? An employer may decide to accept information received via any or all of the above methods of delivery or may determine that only one method of delivery is appropriate. However, regardless of the options selected by the employer, employers should formulate a policy with respect to the foregoing (including it in the job posting or on the job application) and should consistently adhere to that policy. Such policies should include a description of what is acceptable as an application (e.g., it must be completely filled out; etc.), the period applications will be accepted for open positions, and how long, if at all, the application will be held and considered by the employer.

With such a policy in place, applicants or employees applying for new positions will be able to determine whether or not they will be considered. Contemplate the situation where an employer does not have a written policy, but only considers applications that have been sent by U.S. mail. If an individual sends a resume to the human resource director via e-mail and does not receive a call, how does the employer explain why the candidate was not considered? Can the employer defend a claim that the candidate was excluded on the basis of the individual’s race or gender? A thoughtfully formulated policy can eliminate this problem, but it must be consistently followed.

Establishing a clear definition of “Job Applicant,” is also important in light of the lack of legal guidance available as to the proper definition. In 2004, the EEOC, along with several other federal organizations, issued a proposed definition of “Job Applicant” for Internet and Related Electronic Technologies. However, after four years, the definition was withdrawn without having been formally accepted by the agency. The decision to not adopt the definition demonstrates the problems in creating a definition of “Job Applicant.” While, ideally, they would have preferred to have a set definition for the term, the EEOC Commissioners noted that the rapid changes in technology made establishing a definition difficult and they have been unable to adopt a definition to date. Therefore, at this point, it is the responsibility of an employer to develop an appropriate definition of “Job Applicant” (i.e., what is deemed by the employer to be an acceptable job application).

C. THE EMPLOYMENT APPLICATION AND THE SELECTION CRITERIA

1. Application Form

Application forms should be reviewed to determine whether they elicit pertinent job-related information and to ensure that they do not contain legally prohibited or other problematic inquiries. The application should be reviewed to balance the risks and benefits of each inquiry and to verify that it is in the best form possible to find the best qualified candidates for available positions. A poorly drafted application form may lead to the exclusion of qualified candidates.

Certain inquires may be used as evidence against an employer in a suit under state or federal anti-discrimination laws. In general, employers should avoid inquiries that are not job related. For instance, employers should avoid:

• Any inquiry that elicits an applicant’s membership in a “protected class” (examples follow).
• Any inquiry about an applicant’s age beyond what is necessary to establish that the applicant meets minimum age requirements.
• Any inquiry that would reveal an applicant’s national origin.

However, an employer can inquire whether an applicant can furnish proof of authorization to work in the United States. Also, an employer may inquire about an applicant’s ability to speak English and/or other languages as long as the specific language proficiency is necessary for the job.

• Any inquiry that may reveal an applicant’s race or color.
• Any inquiry about marital status.
• Any inquiry about children or childcare arrangements.
• Any inquiry about an applicant’s religion, unless you are a religious organization. Churches and other religious organizations are exempt from Title VII’s prohibition against religious bias in hiring as long as the entity (1) is organized for a religious purpose; (2) is engaged primarily in carrying out that religious purpose; (3) holds itself out to the public as an entity for carrying out that religious purpose; and (4) does not engage primarily or substantially in exchanging goods or services for money beyond nominal amounts.
• Any inquiry into whether there are any religious holidays on which an applicant would not be able to work. However, an employer may elicit confirmation that the candidate can meet the attendance requirements of the position. (Note: There is a religious accommodation requirement under the law).
• Any inquiry whether an applicant has ever been arrested. However, an employer may otherwise ask about an applicant’s criminal history. For example, an employer may ask if the applicant has ever committed or been convicted of a crime, entered a plea of nolo contendre (no contest) to a crime, or received a suspended sentence or had adjudication withheld for a crime. If such a question is asked, the employer should state that a criminal record is not an automatic bar to employment, and should also ask for details. (Note: The EEOC has recently issued guidelines to employers regarding criminal history inquiries and suggested best practices).
• Any inquiry into an employee’s memberships in organizations that may reveal the applicant’s protected status.
• Any inquiry regarding the applicant’s or family members’ medical conditions/disabilities or lack thereof (medical questionnaires should not be used until after an applicant has been given a conditional offer of employment, but before the applicant has started work). (Note: There is disability-related reasonable accommodation requirement under the law).
• Any inquiry regarding past or pending workers’ compensation claims.

Although many of the above-referenced types of inquiries are not illegal per se, they can be used as evidence in a discrimination or other employment-based lawsuit.

At a minimum, employers should consider obtaining the following information on their employment applications:

• Name;
• Other names used;
• Address;
• Telephone Number(s) (including cell phone);
• Confirmation of applicant’s legal authorization to work in the United States;
• Position being sought;
• Specification of hours or shifts sought, if applicable;
• Pay expectations;
• Work experience; including, for each previous employer, the employer’s name, address, and telephone number; dates of  employment; salary information; supervisor’s name and title; job title; and reason for leaving;
• If there are gaps in the applicant’s work history, request an explanation;
• If the position involves driving, the applicant’s driver’s license number and driving record;
• Educational background;
• Training, certifications and special skills;
• References (in addition to prior employers and relatives);
• Criminal history; and
• Civil (intentional tort) suit history.

Just as an application can be used against an employer in a civil lawsuit, so too can it be used against an employee/applicant. If an applicant does not honestly and accurately complete an application, he is being dishonest, which may be grounds for disqualification of the application, termination of employment down the road, or as after-acquired evidence to cut off damages. Many employment cases have been won by employers because of a falsified application (and/or resume).

2. Candidate’s Statement

The application should also include a candidate’s statement, through which an applicant is given notice and affirms his/her understanding of the information he/she is providing and of what the employer intends to do with that information. A comprehensive applicant’s statement might include the following items:

• Verification that the applicant understands the employer may verify all statements made by the applicant either on his/her application form or during the employment interview;
• Verification that the employer has permission to check references of both former and/or current employers and personal references;
• Verification that the applicant understands the employer may check with law enforcement records and officials to answer any questions and to furnish information regarding the applicant’s criminal history;
• A release from the applicant that the employer will not be sued or held liable for checking references;
• A release asking former or current employers to provide information to the employer upon request (a separate form signed by the applicant might also be used);
• Verification the applicant understands that any false, incomplete or misleading statements, omissions, or admissions on the application, or on any other pre- or post-hire document, may result in disqualification from further employment consideration or termination from employment;
• Verification that the applicant understands that if he/she is hired by the employer, he/she must abide by the policies and rules of the employer;
• Verification by the applicant that he/she understands the employment relationship will be an at-will relationship, i.e., the applicant or the prospective employer has the right to terminate the employment relationship at any time, with or without cause or notice;
• Verification that the applicant understands that if he/she is employed there is no guarantee of a particular position or that the position will be continued for any length of time;
• Verification that the applicant understands he/she may be required to work both scheduled and unscheduled overtime, and possibly weekend and holiday work when requested;
• If applicable, verification that the applicant understands and consents to taking any drug/alcohol tests that may be required, and that refusal to take such a test will result in termination;
• Verification that the applicant understands that, pursuant to the Immigration Reform and Control Act of 1986, if he/she is employed by the employer, the employer must  verify legal work authorization and the identity of all new employees;
• Verification that the applicant agrees to a Waiver of Right to a Jury Trial; and
• A signature line and date.

Some employers include a final paragraph following the applicant’s statement in which the employer thanks the applicant for their interest in employment and explains the remaining aspects of the interview process, including time frames for scheduling interviews. Further, it may also provide that incomplete applications or applications containing information not requested will not be considered. (This pertains to defining an “application” – see above discussion.) Not all employers will want to take such a strict position, but those who receive a plethora of applications may want to include such a provision.

3. Job Descriptions

Job descriptions are not legally required, but they help employers define what it considers to be the essential functions and requirements (e.g., experience, education, etc.) of a position and can be used to identify those applicants who will not be able to perform such functions, and who are otherwise not qualified. The ADA provides that if a job description contains the essential functions of a position, there is a presumption that those functions really are essential and a plaintiff would have to overcome that presumption to prove his/her claim to the contrary. Otherwise, the employer has the burden of proving that certain functions are essential. Descriptions also need to clearly state that the employee may be asked to undertake tasks that are not listed on the job description itself. It is important that job descriptions continue to be updated, are accurate, and contain not only the essential function of the job, but also the physical, mental and environmental requirements associated with the job. Many employers have applicants refer to the job descriptions for each position applied for and certify by their signature (perhaps on the application form) that they are able to perform that job with or without reasonable accommodation. This often causes unqualified applicants to winnow themselves out of the application process instead of remaining in and, perhaps, being offered a job they cannot perform.