Ensuring Your Employment Application Is Lawful
December 31, 2018
The days of the “one size fits all” employment application may soon be coming to an end. As federal, state, and local governments increasingly heighten employer hiring process requirements, national employers must be diligent to avoid getting tripped up by the varying rules across different locations. Specifically, three areas may expose employers to liability if asked about on employment applications: "ban the box" laws, salary/compensation history bans, and medical inquiries. Employers may order compliant employment applications on SESCO's web site, www.sescomgt.com, or may submit their current employment application for review.
“Ban the Box” Laws
State and local governments have continued to pass “ban the box” laws, which prevent employers from inquiring into applicants’ criminal history at the initial stages of the hiring process. Several states and cities/counties have adopted a ban the box law that applies to private employers.
Salary/Compensation History Bans
A growing number of state and local laws explicitly ban questions about an applicant’s salary history.
Prohibited Medical Inquiries
Under the Americans with Disabilities Act (ADA), a company’s right to make disability-related inquiries changes across different stages of the hiring process. Prior to an offer of employment, an employer may not make any disability-related inquiries or conduct medical examinations, regardless of whether they are related to the job. Once employment begins, employers may make disability-related inquiries or conduct medical examinations only if they are job related and consistent with business necessity.
Because of this framework, job applications that include disability-related inquiries are in violation of the ADA. Employers should refrain from making disability-related inquiries or requesting medical examinations as part of their pre-offer hiring process. Off-limits pre-offer questions include not only direct inquiries as to whether an applicant has a disability, but also inquiries about an applicant’s genetic information, prior workers’ compensation history, or prescription medications. Employers seeking to minimize legal risks with their job applications should eliminate any questions that ask or relate to an applicant’s possible impairment.
Takeaways
In short, employers seeking information about employees’ criminal history, salary history, or disabilities should proceed with caution. The current legal frameworks surrounding ban the box, disability-related inquiries, and pay equity all suggest that when it comes to asking sensitive questions at the pre-offer stage in the hiring process, less is more. To avoid liability, employers should contact SESCO and conduct a job application check-up.
