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Are Your Employment Applications Legally Compliant?

By Amelia J. Holstrom - Skoler, Abbott & Presser, P.C.

February 12, 2018

Many employers don’t know that Massachusetts law prohibits employers from asking for certain information on employment applications and requires employers to include certain statements on employment applications.  Below is a review of what the law prohibits and requires as well as suggested best practices when it comes to applications.

Criminal Background Questions

In 2010, then Governor Deval Patrick signed a bill that made it unlawful for employers to request criminal information on initial employment applications.   Prior to signing the legislation, employers regularly asked applicants on the initial application whether they had any criminal convictions.  Under the law, often referred to as “ban the box” such inquiries are unlawful except for in two very limited circumstances: 1) when a federal or state law or regulation indicates that an applicant will be automatically disqualified for a position based on a criminal conviction; and 2) when a federal or state law or regulation requires an employer not to employ someone who has criminal convictions.   As a result, most employers in Massachusetts can no longer include questions about criminal history on their job applications.

Salary History Information

As discussed previously, in August 2016, Governor Charlie Baker signed a bill amending the state’s Equal Pay Act, which prohibits certain pay-related conduct among other things.  Specifically, the law prohibits employers from asking applicants, on the job application or otherwise, their salary or wage history prior to making an offer.   As a result, employers must remove salary and wage history questions from their applications by July 1, 2018, the date the law goes into effect.

Lie Detector Tests

Massachusetts law also requires employment applications to include the following statement:  “It is unlawful in Massachusetts to require or administer a lie detector test as a condition of employment or continued employment.  An employer who violates this law shall be subject to criminal penalties and civil liabilities.”

Employment and Volunteer History

Employment applications in Massachusetts must provide the applicant with the opportunity to include any work performed on a volunteer basis in the employment history section.  Accordingly, employers should include a statement such as the following in the section requesting employment history: “You may include any verified work performed on a volunteer basis in this section.”

Social Security Numbers

Although it is legal for employers to request an applicant’s social security number on an employment application, we don’t recommend doing so.  With the increase of identity theft, employers should minimize the amount of unnecessary protected information they receive, and taking social security numbers off initial employment applications is one way of doing that.  There’s little reason to collect social security numbers of applicants who may never get beyond the initial application step.  Rather, employers should consider eliminating this information from the application and collecting the information when the employer actually needs it – such as at the time it runs a background check or on the new hire paperwork after an applicant is hired.

Authorization

Every employment application should close with an authorization requiring the applicant’s signature.  The authorization should contain several key provisions:

• Certification – Applicants should indicate that they certify that the facts and information provided in the application are true and complete to the best of the applicant’s knowledge. The applicant should further acknowledge that if falsified or misleading statements on the applications are discovered during employment, the employer may terminate the individual’s employment effective immediately.

• Investigation of statements – The applicant should authorize the employer to indicate all statements, references, and employers contained in the application and authorize those references and employers to give the employer any information concerning the applicant’s previous employment and references to give any personal information about the applicant. This section should also release the employer from all liability for any damage that may result from using such information.

• At-will provision – The authorization section should contain an acknowledgment by the applicant that if hired, s/he is an at-will employee and that as such either the employer or applicant may terminate the employment relationship with or without cause or notice at any time. This provision should also note that the at-will employment relationship may only be changed by an enforceable, written agreement signed by an authorized company representative.

• Anti-discrimination provision – An anti-discrimination provision indicating that the employer does not discriminate based on membership in any protected class in the terms and conditions of employment, including but not limited to hiring, should be included. It should list all of the protected classes under Massachusetts and Federal law and also include the following: “or any other class protected by law.”

• Abide by the rules – This section should include a statement that the applicant understands that s/he is required to abide by all rules and regulations of the employer.

• Acknowledgment – The last sentence of the authorization should contain an acknowledgment by the applicant that s/he has read and understands the above statements.

• Signature and Date – Immediately following the authorization section should be spaces for the following: applicant’s signature, applicant’s printed name, and date.

It is important that employers comply with the law when it comes to applications.  Failure to do so could subject them to fines and penalties.  For those reasons, it is important that employers have their applications reviews and make edits periodically.

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