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In addition, application forms often contain important notices, for example informing applicants of their at-will status and background check requirements. Further, they can help show that a candidate is legally considered an applicant, to help you comply with equal employment opportunity and affirmative action recordkeeping requirements.
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General Versus Specific Application Forms
Some employers use the same job application form for all types of positions within the organization, while others use specialized application forms adapted for each job type. The job-related application form ordinarily includes a general section for collecting basic screening information applicable to any job and a job-specific section for gathering information relevant to a particular position.
The job-related application form often provides more substantial information about specific required skills and usually is less likely to solicit irrelevant information. An application form that enumerates the functions of the particular job or that includes a job description also can be helpful in complying with the Americans with Disabilities Act. These items can help in determining the candidate’s ability to perform essential functions of the job.
Before using any type of application form, however, you should have legal counsel review it to ensure that it does not contain questions or statements prohibited by law, particularly those pertaining to the applicant’s membership in a class protected by federal or state statute.
Employment Application Forms Help Define Who is an Applicant
The use of a standardized application form also can help you show who you regard to be an “applicant,” a determination that is very important in complying with federal record retention and reporting requirements. For example, Title VII of the Civil Rights Act requires covered employers to retain applications for employment and other documents pertaining to hiring for one year from the date the records were made or the last action was taken. In addition, federal contractors must track applicants to show compliance with their affirmative action programs.
The Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP) broadly define applicant to include any person who has indicated an interest in being considered for hiring, promotion, or other employment opportunities. This interest might be expressed by completing an application form, or might be expressed orally, depending on the employer’s practice. See Uniform Guidelines on Employee Selection Procedures.
The difficult job of determining which contacts create a job applicant for recordkeeping purposes has only increased with the proliferation of e-mail, online recruitment Web sites, and corporate and personal Web pages. The OFCCP adopted a rule in 2006 that is applicable to federal contractors and uses four criteria that must be met to determine who is an Internet applicant:
(1) The individual submits an “expression of interest” in employment through the Internet or related electronic data technologies (such as email, resume databases, job banks, electronic scanning technology, applicant tracking systems, and applicant screeners);
(2) The contractor considers the individual for employment in a particular position;
(3) The individual’s expression of interest indicates the individual has the basic qualifications for the position; and
(4) The individual, prior to receiving an offer of employment from the contractor, does not remove himself from further consideration or otherwise indicate he is no longer interested in the position. See 41 C.F.R. §60-1.3.
Further, the OFCCP rule indicates that if contractors also accept “expressions of interest” by traditional methods (such as mailed resumes or applications in person) for the same positions, then they should apply the Internet applicant definition to all of these candidates.
The EEOC also attempted to define Internet applicants and issued guidance in 2004 that limited the definition of applicant, in the context of the Internet and related technologies, to persons who have indicated interest in a particular position that the employer has acted to fill and who have followed the employer’s standard procedures for submitting an application. However, the EEOC then withdrew the definition in 2008 and reverted to using just the Uniform Guidelines definition.
These broad definitions have led many human resources experts to suggest that employers need to be precise and restrict formal applicant designations by requiring that all interested individuals complete an application and by only accepting applications and resumes for jobs that currently are vacant and for which candidates are being recruited. Otherwise, you may have to keep track of any person who expresses interest in a position, whether it is available or not.
Unsolicited Applications and Resumes
The same issues apply to unsolicited applications and resumes. Some HR experts favor accepting them because it expands access to qualified candidates. Others believe that this practice can cause problems concerning the makeup of the applicant pool for equal employment opportunity and affirmative action compliance purposes.
For example, if a government contractor is required to implement an affirmative action program, anyone who actually is considered for an opening will be considered an “applicant,” even if they have not applied for that job. Similarly, record retention requirements will apply to all applications and resumes accepted. Furthermore, if you treat unsolicited applications and resumes inconsistently, you may be exposed to claims that your hiring procedure is discriminatory.
To guard against these claims, therefore, you should prohibit the acceptance of unsolicited applications and resumes. Note, however, that if you decide not to accept unsolicited applications and resumes, you must apply the policy without exception. That is, you must discard all unsolicited applications or retain them all. Otherwise, you may be faced with claims that your selection procedures exclude certain protected groups.
(Download free “Employer’s Quick Guide to HR Laws
Another issue to resolve is how long you will keep applications in an active status. Most employers’ policies specify the length of time that applications will be actively considered for job openings, typically six months to a year, and applicants should be informed of this time period. As a result, many employers date stamp application forms and periodically purge the files of these forms.
Note, too, that you also must comply with federal, state, and local laws requiring that personnel records be retained for a specific period of time, generally at least one year, and with any rules covering disposal of records. So, before any files are purged, these laws should be consulted.
Application Forms Standardize the Hiring Process
As discussed above, application forms can capture information missing from resumes, help you compare candidates’ qualifications, and classify who is actually an applicant for equal opportunity and affirmative action recordkeeping purposes.
Of course, employment application forms generally represent just the first step in the hiring process. They are most effective when used in conjunction with other hiring tools such as resumes, interviews, reference and background checks, and preemployment tests. So, in addition to analyzing application issues, you also should review your other hiring tools.
Robin Thomas, J.D.
Personnel Policy Service, Inc.
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