Applications: Best Hiring Practices Part 2

The challenge for employers, their HR staff, and hiring managers is to absorb enough employment law to make the right decisions. Here are 10 of my favorite tips about the hiring process/application forms:

Some Massachusetts Hiring Application Requirements

  1. Lie Detectors – A Statement that Lie Detector Tests are unlawful in Massachusetts   as a condition of employment or continued employment.
  2. Volunteering –If the app contains a place to list prior em­ployment, a sentence must be included stating that verified work on a volunteer basis may be listed.
  3. Criminal Records – With certain exceptions, the job application cannot ask about a criminal record, but you can ask limited questions in an interview and get authorization under the iCORI reforms, that we talked about before.
  4. Medical Troubles – The ADA and state law prohibit, before hiring, asking about disabilities or questions leading to such, including: medical history, workman’s compensation claims, and prior attendance records. An applicant’s physical or mental ability to meet job functions must be addressed post-hiring offer.

Advisable Provisions/Practices

  1.  Describe the Job– This should be number one – a determination of needs, functions and a job description. Well-written job descriptions are an important part of providing documentation before it comes time to demote or fire. The impetus came with the ADA, which requires that employees be able to perform the essential functions of the job with or without accommodation. Courts uphold firings of those who cannot perform them.
  2. We Will Look At Everybody – State that all qualified applicants will be considered for hiring – an equal opportunity employer statement.  Federal contractors are required to include an EEO statement.
  3. Employment-At-Will Statement – To lessen implied contract claims, employers should require applicants to agree that the employment relationship will be as an “employee-at-will,” and thus either party may terminate the relationship at any time.
  4. I Did Not Tell A Lie – A Statement by the applicant that the information on the application is true and complete. The employer should also include authorization that a hired applicant will be subject to dismissal at any time the em­ployer discovers any falsification, omission, or misrepresentation of a material fact.
  5. Background Checks – Authorization to check references, conduct criminal, background and credit checks, and verify all other information provided on the application to avoid a potential claim of “negligent hiring.” To try to get past employers to provide meaningful information, in­clude release language authorizing the hiring employer to check references and waiving any claims.
  6. There’s a test?  Include a statement of any testing requirements during the application process or after a conditional offer of employment. Is the test one of actually needed functions or skills stated in the job description?   One kind of discrimination occurs if testing has a “disparate impact” upon different groups.  Certain tests may present a higher hurdle and tend to eliminate more members of protected groups.

We have available a model job application form that we think meets most Massachusetts and federal requirements.  Contact our office and visit our web site for employment and business law tips or call us about your particular issues.

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