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Tuesday
Feb032009

Employment Applications - Protect Your Business in 22 Ways

It is obvious that the employment relationship begins with the application process. What may be less obvious is that your ability to prevent employee lawsuits, Your ability to successfully defend employee lawsuits and your ability to terminate or layoff employees also begins with the employment process.

Usually, the employment process starts with the employment application. A carefully worded application can be your first line of defense. An out-of-date or ineffective application could cost you dearly.

With a carefully drafted employment application you can:

1) Employment Gaps. Identify periods of unemployment for further inquiry.

In one case, a resume covered over a prior termination for embezzlement.

2) Prior Application/Unemployment. Highlight whether the applicant has worked for you or applied for a job with you before.

We have seen situations where people making hiring decisions are not aware that an applicant was previously fired by their company. The problem worker was rehired only to cause problems again.

3) Legal Status. Have the applicant verify he or she is legally eligible to work in the United States.

4) Criminal History. Ask about criminal convictions (must do this in the right manner).

Do you want to hire a sex offender? At the very least, you should ask about criminal convictions.

5) Ask Why. Ask why the applicant is seeking a change in employment.

6) Prior Terminations. Ask if the applicant has ever been discharged or requested to resign.

If someone was fired from a job, do you want to know about it? Do you want to ask why? The answer to both questions should be yes.

7) Attendance. Address attendance questions upfront.

Attendance has been a huge problem for almost every employer. You should start discussing your attendance expectations at the very beginning. Your application can ask if the applicant has been disciplined for attendance issues.

8) Transportation. Ask if the applicant has reliable transportation to work.

You can not require applicants to have a driver’s license unless the job they are being hired to perform requires a driver’s license. Nor can you require applicants to own a car. You can, however, ask if they have reliable transportation to work. You can do this in your job application.

9) Competition Restrictions. Determine upfront if the applicant is subject to a noncompetition agreement with a former employer.

10) Drug Use. Ask applicants in your application upfront if they are using illegal drugs.

There is no doubt that job applicants lie. Drug tests, however, cost money. If this application provision weeds out a few applicants, it will save you the cost of pointless drug tests.

11) Equal Employment. Document compliance with laws prohibiting discrimination.

You can start to do this in a statement in a job application. You can not do this with a resume.

12) Accurate Information. Have applicants verify all the information provided is accurate and may be verified.

This is an important provision when combined with some of the other statements discussed above. If an applicant lies, is hired and you later find out about the lie, your application may provide you with additional grounds for terminating the employee.

Usually such problems are discovered after an employee is terminated and then sues claiming discrimination. Your application, even though the lie was discovered after the fact, may provide you with additional defenses.

13) Rules & Policies. Have applicants commit to follow all of your rules and employment policies.

14) Investigation. Have applicants authorize you to investigate their work history, character, education and criminal history.

15) Reference Checks. Have applicants authorize schools, prior employers and references to release information to you.

16) Reference Release. Have applicants release schools, prior employers and references from liability for anything they may share with you.

It is very difficult to get former employers to talk to you about applicants. The authorization discussed above and this release are two tools that may provide some assistance. We also have additional tools for employers that may help.

17) At-Will Employment. Document your at-will employment status.

This is vital. You can not do this with a resume prepared by an applicant.

18) No At-Will Waiver. Have the applicant acknowledge that nothing has been said that changes the at-will employment status.

This too is crucial. A common response to an employee’s at-will defense is that statements were made that waived the employee or former employee’s at-will status. Address this upfront in your application.

19) Final Paycheck Deductions. Have the applicant authorize certain deductions from his or her final paycheck (if hired).

There are much better ways to do this. Unfortunately, some employers fail to do so. Or a mistake is made and it just happens to be this one employee who takes you to court. This provision may provide some defense.

20) Conflicts of Interest. Have the applicant verify that he or she is not involved in any activity or business that conflicts with your interest or that of your customers or clients.

It happens all the time. People advocating causes apply for jobs and begin working for businesses they want to “expose.” Get a statement signed by each applicant that this is not the case. If you have problems down the road, this statement may help you protect certain information, discredit the fraudulent applicant and take action against the activist.

21) Application Limit. Limit the length of time you will consider the application to be valid.

If someone drops off a resume. How long will you keep it? How does the applicant know how long you will keep the resume? This is important because applicants who have left resumes and then were not interviewed when a job was filled many months later have sued claiming discrimination. A time limit on applications can be an important defense.

22) Arbitration. Have the applicant commit to arbitration to resolve any disputes relating to the application for employment or subsequent employment.

As you can see, a proper application can provide you with effective strategies and tactics for preventing and defending against employment claims. It also can document your compliance with employment laws. If you use an application, have it reviewed by an experienced lawyer. If you only collect resumes, you should change that practice immediately.

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