The employer must review the employment application carefully. In order to determine whether all the questions asked are appropriate, consider whether the information requested is reasonably related to the job for which the applicant is applying. For example, does the employer really need to know whether an applicant for a custodian position has a driver’s license and the number and the state in which it was issued? Also, determine whether any of the questions on the application ask information which might impermissibly reveal the applicant’s status as a member of a protected class. For example, inquiries into club memberships or civic organizations should be followed by a disclaimer which states that the applicant need not disclose any activities which might reveal him or her as a member of a protected class.
Employers should not automatically assume that standard, preprinted employment applications only ask legally permissible questions. First, a preprinted form may ask questions which are not reasonably related to the job for which the applicant is applying. Second, preprinted employment applications may not be tailored to comply with individual state laws and may ask impermissible questions as discussed in the Interviewing section later in this Guide.
Employers who are federal, state or local government contractors or who must compile equal employment opportunity (EEO) data on applicants (as may be defined by statute or regulation),7 may ask certain questions relating to race/ethnicity and gender so long as those questions are asked on a form which is kept completely separate from the employment application and which is not used in the hiring process. Completion of this form by applicants is voluntary.
The Application Process
Under the federal Americans with Disabilities Act, employers must provide an equal opportunity for individuals with disabilities to participate in the job application process. Therefore, employers subject to the ADA must make reasonable accommodations to enable disabled applicants to apply for available jobs. Employers are not required to make reasonable accommodations in advance; they are simply required to make such accommodations on request.8 This might include providing job information in an accessible location or providing written job information in various formats (e.g., in large print or on CD).
Employers should consider including disclaimers on employment applications, in any employee handbook maintained by the employer, and, if there is a handbook, in a separate acknowledgment regarding the handbook. The disclaimer must be clear and conspicuous and should include the following:
- That the employer retains the right to terminate its employees at any time for any reason not prohibited by law, that an employee has the right to resign employment at any time for any reason (subject to the employer’s notice request or requirement, if any), and that these mutual rights constitute the employer’s at-will employment policy;
- That any understandings and agreements between the employer and any employee to the contrary must be in writing and signed by the proper officer of the company;
- That the employee handbook, if there is one, does not constitute an employment contract for a term of employment and may be revised or discarded at the employer’s discretion; and
- That the employee handbook, if it is being newly issued, supersedes all prior handbooks and previously issued policies.
CREDITS: This post is an excerpt from An Employer’s Guide to Employment Law Issues in Minnesota, originally produced through a collaborative effort between the Minnesota Department of Employment and Economic Development and Lindquist & Vennum, P.L.L.P.
This post is part of a series of posts on hiring an employee in Minnesota.
7. 41 C.F.R. § 60-1.3 (2007) (The “Internet Applicant Rule”).
8. U.S. Department of Justice, The Americans with Disabilities Act: Title I Technical Assistance Manual § 3.1, 3.6 (1992).