Employment Applications

As an employer, it is important to remember that you are limited in what you can ask (and say) on an employment application. There are some areas to steer clear of, and some which require a bit of caution. To be completely safe, you should treat disabilities, race, and religion as off-limits. Disabilities can be the subject of some inquiry, so long as the questions are directly related to the job, not to the disability. 

Disabilities

You cannot ask whether someone has mental or physical disabilities. However, you CAN ask whether the applicant can do the job. You cannot ask about treatment for mental or physical problems, unless the treatment or problem is directly related to doing the job. By clicking on the icon below, you can link to information about the EEOC's Guidance on pre-employment disability-related inquiries.

Medical Exams

You are allowed to give someone a medical exam to see if they can do a job. However, the exam has to be limited to things relevant to the job. In other words, if the position requires someone to lift 50 pound loads each day, you cannot ask them to bench-press 300 pound loads, or to run the mile in under 5 minutes. You cannot ask an applicant to take a medical exam to see if they will be a health risk, or to see what they are going to cost you in health insurance premiums.

Criminal records

Some states (Maryland is an example) prevent employers from asking about criminal charges that have been expunged (removed from their criminal record). State law also can prevent employers from asking about criminal charges that did not result in a conviction. However, you can usually ask whether someone was *convicted* of a crime.

Religion and Race

You may not ask prospective employees questions that could be used to discriminate on the basis of race, national origin, or religion. Generally, it's a good idea to steer clear of these subjects during job interviews as well. Make sure your employees know not to ask questions about people's ethnic or religious background.

• Non-competition Agreements

You may wish to ask employees to sign a non-competition agreement. This is a clause in the employment contract, or a separate agreement, that forbids employees from working for your direct competitors, or to engage in direct competition, for a specified period after the employer leaves. Caution should be used here, because these agreements can be difficult for employers to enforce. In most states, they will only be upheld if they are "reasonable." This means that the restrictions on what employees can do have to be necessary to the employer's business, and they have to be limited in time.

• Applications and the After Acquired Evidence Doctrine

If you ever are involved in a sex discrimination, racial discrimination, or other employment related lawsuit, the employee's initial application should be carefully reviewed for misrepresentations. If there is something the applicant failed to disclose which would have justified termination or non-hiring, you can minimize your damages. This is the "after-acquired evidence doctrine," which states that an employer can minimize damages in a termination suit if it would have had a separate, legitimate basis for firing the employee. This basis can include information not discovered until after the employee is terminated.

For more information about employment applications and other employment law related topics, click on the icon on this screen to be connected to our Employment Law Message Board. There you can interact with a number of employment lawyers and other legal professionals, as well as other people with similar concerns.

Copyright 1996 David Trieloff, Esq.

Mr. Trieloff passed away on April 16th, 1998 and is sadly missed by the staff of the Business Know-How where he was a member of the volunteer staff.