Job Application Questions: Are Employers Really Allowed To Ask You That?
For many employers, the job application is the first contact they have with you as a prospective employee. What can they ask you? What does it mean? What should you answer to some of those questions? Here are some areas of concern in your employment application.
In some states, companies aren't allowed to ask about arrests, but if they do, answer truthfully. Same with convictions. If your conviction is expunged, check the state's law where the expunction happened. In most states, if the conviction is expunged you can honestly answer "no" to questions about arrests and convictions -- with certain exceptions, such as jobs in law enforcement. Precluding applicants from being hired due to an arrest or conviction might also have an adverse impact on minorities, so it could be discriminatory. If they ask this, get a copy of the application or make a note of the exact question and your answer.
Age, Sex, Religion, Race, National Origin, Disability, Genetic Information
Your employer isn't supposed to ask questions that reveal a protected status. What do you do if they ask these questions? Answer truthfully, but keep a copy of the application with the illegal question. If you're turned down, it might give you ammunition for a discrimination claim later. If you want the job, don't make a stink about the question. If you feel you must raise the issue, get hired, then point it out gently after you've become a trusted employee of at least six months to a year.
Many employers still conduct credit checks on prospective employees. Yet credit checks may also have an adverse impact on women and minority applicants. If you think you've been denied a job due to a credit check, you may have a discrimination claim. If the employer intends to run a credit check on you, your application will ask for your written permission. If you don't give permission and the credit check is run anyway, the employer is violating the Fair Credit Reporting Act and possibly your state's law.
It may be legal for an employer to refuse to hire you because you had a bankruptcy. The bankruptcy is public record and will be revealed in a background check.
Worker's Compensation Claim
Even though most states make it illegal to fire you for making a worker's comp claim, few states prohibit hiring discrimination based on worker's compensation claims. Even in those states that bar worker's compensation discrimination, the claims are public record and the employer may find out about them. Worker's comp information may well reveal the existence of a disability, so employers who use this information against applicants do so at their peril.
Do you list the supervisor whom you reported for sexual harassment? Do you list the job from which you were fired for blowing the whistle on securities violations? The legal answer is yes. Omitting employment history will give an employer an excuse to fire you later, and it will probably come up in a background check. Many companies have reference-checking phone numbers through which HR will only give neutral references -- dates of employment and job title. If the employer was a problem employer, list the neutral reference line. Or you may have a supervisor who will still say something positive. List them instead of the one you know will slam you.
Some sneaky employers are putting all kinds of contractual provisions into employment applications. They may ask you to waive trial by jury, or to waive your right to go to court and force you into arbitration, and the courts are allowing these provisions to stand in some states. Beware of the employer that puts these provisions in applications. Your employment with them will likely be a matter of the company constantly operating in defensive mode, treating employees as the enemy.
Lying On The Application
It's tempting to lie when you are asked a difficult question on the application. Think carefully before you do. The consequence of lying about anything, such as job history and terminations, is that if the employer finds out that you lied, even years later, they can fire you. It also can be used as a defense to a lawsuit in order to cut off your damages. The employer will say that they could have fired you because you lied, so your right to lost wages/back pay is gone.
- Answer truthfully. That's the legal answer. Career advisers will tell you to carefully frame your answers or even omit information. They're not wrong, but I can't advise you to do anything but tell the truth.
- You might want to hire a professional reference-checking company to find out what prospective employers will say about you so that you can tailor your application and interview accordingly.
- Some employers (those with at least 100 employees or government contractors) are required to report race, gender and ethnic information of all employees to the government, and some do track this information for affirmative action purposes or other legitimate reasons. They may have to ask this information on a form separate from your application, such as on a "tear sheet." However, if this is asked pre-employment, you should make note of it and keep a copy if possible.
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Donna Ballman’s book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was the Winner of the Law Category of the 2012 USA Best Books Awards and is currently available for purchase.Donna is the award-winning author of The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. She’s been representing executives, physicians and employees in Florida, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and other employment law issues since 1986. Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, was named one of the 2011, 2012 and 2013 ABA Blawg 100 best legal blogs, Paralegal 411’s Top 25 Labor and Employment law Blogs of 2013 and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs.
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