January 30, 2020

Pitfalls of Generic Employment Applications

This is the first in a series of posts addressing small updates to your hiring process that can have a big impact.

A new year brings the opportunity for new beginnings. We started the year with Ten Employee Handbook Updates to Consider for the New Year. One of the most impactful updates a city can make is ensuring the employee handbook is up to date. Often, though, we hear from cities how difficult it is to tackle updating employment processes while also juggling other job tasks. This series will focus on the small updates that can make a big impact on your hiring process (until you can tackle that employee handbook!). First up: employment applications.

Employment applications are not one-size-fits-all, despite what you might think after quickly googling “employment application form”. Each state has different laws governing the employment process and often public employers have additional considerations when hiring. Despite the need for tailoring, it is tempting to download one of the infinite number of free applications available online. (Instead, member cities can contact KLC’s Personnel Services for a free sample employment application.)

As we begin the new year, take a moment to review your city’s current application form and see if it contains any of the following common pitfalls. If so, you should consider updating your application (or replacing it with one adapted from our sample application):

1. Requesting a social security number.

A social security number is not needed at the application stage of the hiring process. Inclusion of the number on the application requires cities take additional precautions to protect the applicant’s privacy. Also, requesting the number could lead to a potential discrimination claim based on immigration status if a non-U.S. citizen was denied employment. While workers in the United States are required to have a social security number, non-U.S. citizens with work authorization can work temporarily without a social security number. Instead, cities should wait until a conditional offer of employment is made and request the social security number on the background check waiver form[CS1]. For more information about background checks, read here.

2. Requesting unnecessary demographic information.

Hopefully there are no applications floating around out there with: “check one: male or female”. (If so, just throw that one out, now!) However, there can sometimes be demographic information hidden in plain sight. Names, addresses, dates of birth, and graduation dates can all reveal protected class information. Forms should not request age (through dates of birth or graduation dates) or gender. Cities should also consider applications that allow for a “blind” first review of applications, placing all identifying candidate information on the first page which could be removed prior to review of the candidate. This removes many potential biases from the pre-interview stage while also weakening claims of discrimination based on protected class status.

3. Requesting immigration status information.

Cities should not ask whether a candidate can legally work in the United States on the application. The information is not needed at the application stage and could deter some candidates from applying. If an offer of employment is made, it would be conditioned on the candidate providing the required documentation and completion of the Form I-9.

4. Questions related to prior salary or salary expectations.

While Kentucky employers are still allowed to request this information, best practice is to avoid prior salary or salary expectation questions. Instead of asking the candidate for salary information, cities should base their compensation offer on the city’s budget; the city’s pay and classification plan; and the market value for the job.

5. No contact information provided to request assistance with the application process.

Including a simple statement can make it clear to candidates that the city will not consider their disability, if any, in the hiring process. It can also help reduce liability for claims that a candidate was denied employment based on their status as disabled. A simple statement could be: “Any applicant who needs an ADA accommodation in the employment selection process will request the accommodation from the city clerk.”

6. Requesting disclosure of criminal history.

Public employers are required to follow KRS 355B.020 which prohibits consideration of criminal history in most situations. Asking for the disclosure on the application can create the impression that the conviction will be considered, despite any statements that it will not be. Instead, cities should perform criminal background checks after a conditional job offer is made.

For more information on these topics or any other personnel issues, contact Courtney Risk Straw, KLC Personnel Services Attorney, or Andrea Shindlebower Main, KLC Personnel Services Manager.