A Look at Employment Applications Across the U.S
The application, and sometimes the résumé, is the first point of contact between employer and prospective employee. Potential employees generally take the application requested by the employer and fill it out completely. They also review the application for accuracy and submit information about prior employment, education, and references to the employer. Once submitted, the employer reviews the application to determine if the applicant meets basic qualifications for the position. If so, the employer will afford employment consideration. If not, the employment process will likely stop at this point. Sometimes applications are rejected before review due to dates or employment, appearance of inaccuracy, illegibility, or other issues.
Once the application is reviewed, the employer may schedule an interview. After the interview, the employer may or may not call the applicant’s references to perform background checks, drug testing and/or criminal checks and review the information presented on the application, confirming both its truth and accuracy, and verifying eligibility for employment. Because there is a short time frame from when applicants submit applications to when employers hire applicants, we may receive applications with all or most of the information missing.
While specific state law controls the standard form of employment applications, certain standard elements are typically present on most forms.
First, most applications provide a statement that the applicant gives permission for the employer to contact the references listed. Some provide that the applicant waives all rights of action against any employer contacted. Waivers are used in anticipation of litigation and mitigate an employer’s risk in hiring. For example, if stated references are not contacted and complaints surface, the former employer is shielded from liability.
Second, most applications provide a request for release of information by current or former employers, and job references . Sometimes the application will provide that the information to be provided may include fact, opinions and evaluations concerning the applicant’s performance and treatment in the current or former position. As stated in the previous paragraph, this document is often used to shield current or former employers from lawsuits.
Third, most applications require that the applicant provide information about any criminal history and underlying facts, if any, surrounding the arrest or conviction. Commonly, the applications contain a statement that an affirmative answer does not constitute an automatic bar to employment and will only be considered in relation to any job requirements. Generally, the EEOC and some states will view the conviction of a crime in a different manner than the arrest of a crime. While each state differs in what can be asked on the application, most states allow an employer to ask if an applicant has ever been convicted of a crime as opposed to being arrested.
Lastly, the application will likely provide a statement that the applicant must read the application for accuracy and truth, and that all statements made are true and complete and not misleading. Some applications go further by providing that former employers may be notified or have knowledge of an incomplete or false application submittal.
While common elements exist in most or all applications, some states and/or the federal government limit the types of questions that can be asked by employers. Additionally, certain classes of persons may also be shielded from certain questions under different state and federal laws. Finally, many governmental agencies and federal contractors have applicants or employees sign an authorization for the release of information to the employer from current and former employers. Some states and the federal government provide that the signature is valid even if they did not receive a copy of the disclosure or authorization.
Further complicating the applications are issues of immigration, citizenship, employment discrimination, and record keeping requirements.
The Basics of Federal Employment Applications
Employer compliance with federal laws is non-negotiable. An employer’s personnel practices and employment applications must comply with federal anti-discrimination and affirmative action laws, guidelines and orders. The applicable laws include Title VII of the Civil Rights Act of 1964, as amended (Title VII); the Age Discrimination in Employment Act of 1967, as amended which prohibits discrimination based on age; the Americans with Disabilities Act of 1990 and information about complying with it (ADA); and the Genetic Information Nondiscrimination Act of 2008, as amended (GINA).
Title VII prohibits discrimination in employment on the basis of race, color, religion, sex or national origin. 42 U.S.C. § 2000e et seq. Accordingly, Title VII prohibits employers from inquiring about an applicant’s race, color, religion, sex or national origin in an employment application. Conversely, Title VII prohibits an employer’s discriminatory practices in favor of job applicants of a particular race, color, religion, sex or national origin. EEOC guidelines on determining whether an employer’s selection practice has a "disparate impact" based on the exclusion of a class of applicants and employees characterize discriminatory practices as "neutral…rules or selection criteria that have unequal effect or impact on classes of persons protected by Title VII." That is, an employer practice is considered to have a "disparate impact" if it "causes a significantly different result to [a] protected group or groups of individuals than it does to members of the general population…. [if] minorities are selected at substantially lower rates than non-minorities."
The regulations pertaining to the ADA govern a broad range of employment practices to ensure that they are not discriminatory on the basis of disability. Under the ADA, an employer may not discriminate against a qualified individual with a disability because of the individual’s disability in regard to such matters as recruitment, hiring, firing, advancement, compensation, job training and other terms, conditions and privileges of employment. 42 U.S.C. § 12112(a). The EEOC guidelines under the ADA emphasize that an employer cannot ask an applicant if he/she is disabled or, if so, to identify the nature or extent of the disability. The ADA prohibits questions which seek information about whether an applicant is disabled within the meaning of the ADA, and questions about an applicant’s functional limitations or medical condition. The applicant’s answer to either question must be voluntary, but the ADA prohibits an employer’s asking either question. However, the ADA does not prevent an employer from asking questions that are not disability-related, even if they seem to be related to a disability. See 29 C.F.R. § 1630.14; Phoenixville Gen. Hosp. v. National Labor Relations Bd., 852 F.2d 1168, 1179 (3d Cir. 1988).
Additional considerations in completing a Federal Employment Notice include a request for veteran status. Certain veterans are entitled to preferences in hiring, promotion, and retention during periods of reduced employment. 5 U.S.C. Chapter 21. The Veterans’ Employment and Reemployment Act (VERA) also entitles certain former service members to employment protection upon return from military service. Employers who are required to file certain actuarial and financial reports based on the group health insurance plans in which their employees participate must also request information in order to prepare the reports. 29 U.S.C. § 1052.
State-by-State Variations in Employment Applications
Though some states offer considerations under catchall laws that provide protections to all employees, many state-specific application laws vary widely from jurisdiction to jurisdiction—including how employers must obtain information about applicants. These differences are wide-ranging, as illustrated below:
Background Checks: Some states (like California) have laws regulating when an employer may request or consider a criminal background check. As this post addressed, other states (like New York City) have laws regulating when an employer may ask about an applicant’s salary history.
Salary History Inquiries: While some states (like California) have laws regulating when an employer may request or consider an applicant’s salary history, other states (like California again) do not. Still other states do not have catchall protections and address this issue through local ordinances or cities. For example, while South Carolina does not prohibit employers from asking applicants for wage history, Charleston does.
"Employment At Will": Even states that recognize common law employment at will differ on when they require employers to provide notice to applicants of this doctrine, if at all. For example, Illinois provides a poster summarizing the at-will doctrine that employers can post at the workplace, but a California law issued effective January 1, 2020 adds a further requirement: employers must also notify employees of the existence of the at-will relationship with a written document signed by the employee. Other examples include Georgia, which does not require employers to notify applicants of the at-will doctrine, but instead only requires employers provide a statement confirming the same before "signing of the payroll check," Missouri, which states in its Law Summary that all employment is at will unless otherwise agreed by the employer and employee, and New Jersey, which states that an employee can voluntarily terminate their employment at any time without cause, and with or without notice. Yet other states, like Massachusetts, do not require employers to notify applicants of the at will doctrine, but instead require a more restrictive, two-way understanding of the law.
Again, these are only examples of some of the ways that application laws differ. As employers look toward the end of the year and assess their application practices and policies, this area of the law cannot be overlooked.
Ban-the-Box Laws by State
Ban-the-Box is a term popularly used to describe a movement to prohibit employers from asking for a job applicant’s criminal history on initial employment applications. The term "ban-the-box" is so named because the initial question about an applicant’s past criminal history is typically asked in the first section of most employment applications by placing a box that asks if the applicant has any prior convictions, which the applicant must check if they have prior convictions. Twenty-six states and various municipalities have enacted some form of ban-the-box legislation or related regulation aimed at preventing discrimination against individuals with a criminal record.
States with Ban-the-Box Laws:
Connecticut
Hawaii
Illinois
Massachusetts
Minnesota
New Jersey
Oregon
Rhode Island
Verdi
Washington
The District of Columbia and New York City also have ban-the-box laws.
California Requirements:
In California, there are no statewide ban-the-box laws in place, but it is prohibited in certain localities, such as Los Angeles and San Francisco. In November 2013, the California Fair Employment and Housing Council issued a regulation prohibiting employers from asking about criminal history on an employment application.
State Bans on Asking for Salary History
Salary history bans are a relatively new phenomenon that have been passed by dozens of states in recent years. These laws generally prohibit employers from inquiring into the salary history of an applicant during the hiring process. The stated goal of many of these laws is to promote pay equality by preventing employers from offering to pay applicants a salary at least as high as their previous salary. By doing so, the theory goes, disparate salaries will not compound over the course of many years, and the wage gap between male and female employees, and between employees of different races will be reduced .
However, the efficacy of these laws is unknown, as there has yet to be significant substantive study on the issue. Furthermore, many of the enacted laws do not include a mechanism for employees to enforce the law, such that employees cannot file claims of discrimination for violation of salary history bans. Such a lack of enforcement mechanism raises serious questions over the validity and effect of the laws.
The following states have passed salary history bans, with some taking effect as early as 2018.
Disability and Reasonable Accommodations Questions
Under federal law, employers are prohibited from asking applicants about disabilities. The Equal Employment Opportunity Commission ("EEOC") states that: "Under the Americans with Disability Act ("ADA"), you cannot ask about disability at any stage of the employment process, beginning with the application." This includes applications and job ads. Employers may ask whether the applicant can perform the job (with or without reasonable accommodation), but may not ask any questions about disability. The EEOC does state that once a job offer has been given, an employer may ask if the applicant needs reasonable accommodation to perform the job.
A number of states and localities have enacted laws that require employers to provide reasonable accommodations for applicants. Often these laws allow an employer to discuss reasonable accommodations. In places where a law exists, it should be noted that while an employer may inquire whether an applicant needs reasonable accommodation, it may not ask the specific nature or extent of a disability.
Under the District of Columbia’s Disability Rights Law, MPD 4-1492A states that employers must make reasonable accommodations to the physical environment and to work processes in order to enable employees with disabilities to apply for and perform their jobs. Montgomery County prohibits an employer "to use any employment test or other selection criteria as an employment requirement if the test or other selection criterion disqualifies an individual with a disability from consideration and the employer could alternatively screen or <redacted> for the position by using alternative job related screening or selection criteria among individuals without a disability." In order to use this alternative selection process, Montgomery County requires that employers provide reasonable notice of the purpose and scope of the test and its related requirements.
In addition to the federal ADA law, some states have additional protections. For instance, under New York Human Rights Law, it is unlawful to ask an applicant for employment "whether such person has ever been treated for any mental, psychological, or emotional disease or disorder or hold or ever held any certificate." New Jersey law requires all employers to indicate on a job application whether there are any medical examinations/tests. If a medical test/exam is required, such as drug testing, it should be clearly stated on the employment application. Massachusetts does not permit employers to ask if an applicant is disabled.
State Bans on Inquiring into Personal Data Collection
Many states have taken to limiting the amount of personal data an employer can collect on an employment application. At least 13 states now prohibit employers or potential employers from collecting social security numbers and birth dates through the job application process.
The states with the most comprehensive list of restrictions are Connecticut, Hawaii, Maine, Maryland, Missouri, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont and Washington.
Some states penalize employers who violate these laws by allowing affected applicants or employees to recover statutory damages ranging from several hundred to over ten thousand dollars and paying the plaintiff’s attorneys’ fees. Others states can impose criminal penalties for non-compliance with the law as well.
While these technicalities surrounding job application forms can seemingly fall by the wayside/slide under the radar for employers dealing with compliance obligations, the consequences are high – potential statutory damages and attorneys’ fees for applicants. In some of these jurisdictions, the technical requirements on applications can result in challenges to hiring decisions that otherwise would not survive a court’s scrutiny and, instead, are successful based on some technicality.
Best Practices: Employer Considerations
To ensure compliance with state-specific employment application laws, employers should take a proactive approach by implementing the following best practices: Maintain a state-specific employment application. Consider states where the applicants reside as part of your employment application procedures. For instance, if you receive applications from potential employees residing in California, it would be prudent to have a California-specific employment application readily available to exclude sections prohibited by California law. Additionally, you should regularly review your state-specific applications to keep pace with any updated requirements. Create state-specific hiring protocols. In addition to a state-specific application, develop a specific hiring protocol for each state in which you hire employees so as to avoid asking unlawful questions. For example, for all applications received from employees in California, make sure any interviews with California residents only include questions permitted by California law. You might need to train hiring managers and interviewers in state-specific employment policies and procedures so this does not become a costly misstep. Stay updated about changing state-specific laws. Keep current with constantly changing state-specific employment application laws by subscribing to emailing listservs , following credible legal blogs, and routinely consulting qualified employment counsel. You may even want to create a prediction calendar that alerts you to when specific state laws require annual reviews and updates (for example, every December) so you set aside time to review your employment applications and hiring protocols. Implement a four-step compliance review process. First, put together a list of all states in which you are hiring or are considering hiring. Second, make a note of the various requirements in each state and, if any are not applicable to your current employment application and hiring protocols, consider removing those sections that are not permitted in each state. Third, train your hiring managers and interviewers so they do not ask potential employees any personalized questions that may constitute discrimination or violate state-specific laws. Finally, regularly revisit your lists of state-specific pumping laws with your team.