Erin Mindoro is an attorney with the Berger Kahn law firm’s Irvine, California office.
The job application is the first step toward an employment relationship. Employment application forms usually ask for basic information, but a well-thought out application can be the first step to combat against future litigation threats. With a few tips employers can both learn more about their applicants and safeguard against lawsuits.
Here are a few general principles to keep in mind:
1. Limit criminal background questions to convictions and pending charges.
California law only allows certain criminal background questions on applications. For example, misdemeanor and felony conviction questions are fair game. But arrest questions are not allowed, unless they are limited to only current charges where the applicant is waiting for trial. While some exceptions exist, other off-limit topics include: sealed or expunged records, minor traffic offenses, dismissed charges, and marijuana offenses over two years old.
2. Encourage truthfulness and complete answers.
Job searching is very competitive. Applicants may be tempted to exaggerate their resume or hide negative information to be more competitive. Let applicants know early that lying on the application can lead to termination and eliminate the possibility of omissions that could be relevant.
3. Include a non-discrimination clause.
Prevent an applicant from complaining that he or she was not hired because of any legally protected characteristics. Include a non-discrimination clause to let the applicant know up-front that your company does not hire or fire based on race, color, religion, pregnancy, marital status, military and veteran status, disability, gender, age, national origin, or sexual orientation.
4. Clearly explain “at-will” employment.
Clearly explaining at-will employment in the application will hopefully curb against a future lawsuit. Some employees mistakenly think they can only be fired for a good reason. But unless they have an employment contract that says so, their assumption is wrong. “At-will” employment is a two-way street. The employee can quit for any reason. And the employer can fire for any legal reason.
5. Avoid one-sided arbitration clauses.
A company should carefully evaluate whether it wants an arbitration clause. Arbitration clauses are used to force employees to arbitrate claims, instead of filing lawsuits. While having an arbitrator (rather than a judge or jury) decide a case could be seen as desirable, California courts have questioned whether requiring an employee to only arbitrate in an employment application is too one-sided.
If an arbitration clause is really something the company wants to do, a court is more likely to order arbitration if the applicants are given a choice in the matter, a way to “opt-out” of arbitration.
6. Save creative questions for the interview.
While it might may personalize the application for a retailer to ask about design preferences or a music store to ask about the applicant’s favorite kinds of music, specific lines of questions can open the door to challenges. If an applicant indicates a personal preference that may align with a legally protected characteristic, it can later be misconstrued as discrimination.
Working on your employment application’s fine points is a worthwhile project. Although each employer should tailor their application to their business, using these general tips will help you learn more about potential employees while also protecting yourself and your business now and into the future.
Erin Mindoro is an attorney with the Berger Kahn law firm’s Irvine, California office. She received her J.D. and M.B.A. degrees from the State University of New York Buffalo. Her practice focuses on employment law.
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