The Employment Application (plus Q&A: What Is a Third-Party Employment Practices Liability Claim, and How Can I Protect My Firm Against This Exposure)
(County Bar Update, April 2001, Vol. 21, No. 4)

 

The Employment Application

Almost everyone has completed an employment application at some point in his or her work life. The purpose of an employment application is to provide your firm the opportunity to make specific inquiries into an applicant's work and educational background. As an employer, it's extremely important that you keep in mind this purpose and choose the questions to ask accordingly.

The applicant's responses to these questions will assist you in developing a profile of the applicant's qualifications and capabilities to determine if he or she meets the position requirements. Many firms rely on resumes when hiring professional staff, and use employment applications only when filling non-professional positions. This is not the best employment practice, as an applicant's resume will only provide information the applicant wants to reveal. Since the job requirements for professional and non-professional employees differ, your firm's needs may be better met by designing two different employment applications.

An employment application can also be an important tool to reduce employment-related exposures. In fact, many employment practices liability insurance underwriters consider the application to be a vital part of the hiring process and require their use by insureds. Your employee selection process must be free from discrimination under all applicable federal, state and local fair employment practice laws. You want to be sure to keep employment inquiries lawful, asking only about areas that will provide information as to the applicant's ability to perform the job. A well-crafted employment application contains language that limits exposure and omits questions that could lead to allegations of discrimination.

Avoid questions that could lead to actual or perceived discrimination. Discrimination based upon an applicant's race, color, religion, sex and national origin is illegal under Title VII of the Civil Rights Act of 1964 (Title VII), a federal law. There are no acceptable application questions regarding race or color. It's also unlawful to use a different standard when evaluating a female applicant versus a male applicant. Therefore, questions that reveal the applicant's sex, marital status, number or ages of children or dependents, or provisions for childcare, as well as questions regarding pregnancy, child bearing or birth control, are also unacceptable under Title VII.

If your firm has concerns with absenteeism or an employee's ability to travel, it is acceptable to make statements of policy within the application. The following questions would be acceptable:

"The position requires travel -- Would you be able to travel approximately 6 days per month?" or "This position requires dependable attendance and frequent overtime. Can you meet these requirements?"

Title VII also requires an employer to accommodate an employee's religious beliefs and practices. An employer may be exempt from compliance if it can demonstrate that it's unable to reasonably accommodate an employee's religious observance or practice without undue hardship. There's no acceptable application question regarding a person's religion. However, a general statement on the application about the firm's regular work hours would be acceptable. If a prospective employee asks a question about Saturday or Sunday work, the firm should indicate that a reasonable effort is made to accommodate the religious needs of employees.

Finally, Title VII prohibits discrimination based on a person's national origin. Questions about a person's citizenship may have the effect of discrimination based upon his or her national origin. Further, citizens of other countries are legally able to work in this country under certain conditions and circumstances. Therefore, you shouldn't ask whether an applicant is a U.S. citizen. It is better to ask whether the person is legally authorized to work in the United States.

The federal Age Discrimination Act of 1967 prohibits age discrimination against people aged 40 through 70. Employment application questions that request a person's age, date of birth or date of high school graduation could be considered illegal and should be avoided.

The Americans with Disabilities Act of 1990, another federal fair employment practices statute, prohibits discrimination against persons with disabilities. Avoid asking an applicant questions about disabilities, medical treatment, medications, addictions or the amount of sick leave taken in his or her last position. Questions regarding an applicant's height or weight could be perceived as discriminatory and should also be avoided. If a position has specific physical requirements, consult with an employment law attorney for the appropriate way to address this subject on the application.

Include exposure-limiting language. An employment application provides an opportunity to employ devices that may afford a defense in the event of a wrongful termination allegation against the firm. Include a verification statement that the applicant signs and attests to the truthfulness and completeness of the information provided. This statement should include language that the firm can terminate the applicant's employment at any time in the future should any of the information prove to be false or misleading. Additionally, include an authorization that allows the firm to perform a background check on the applicant.

Another important device that should be included in the application is a statement above the signature line that either the firm or the employee can terminate the employment relationship at any time, without notice and for any lawful reason. This is known as an "at-will" employment relationship. This may help with a defense against future claims of breach of an express or implied contract to discharge only for good cause. Note, however, that some states don't ascribe to the "at-will" employment doctrine and permit employers to terminate employees only for good cause.

Lastly, be sure to include a statement that the firm is an equal opportunity employer, also known as an "EEO statement". The firm could use this statement to help defend a discrimination claim brought by an applicant that wasn't hired.

The preceding suggestions only touch upon some of the exposure reduction mechanisms that can be included on an employment application. Whether you choose to use a commercially prepared employment application or design your own form, always consult with a competent attorney whose practice focuses on employment-related matters. Employment laws change often, and a legal review is necessary to insure compliance with all applicable federal, state and local employment laws.

 

Q&A: What is a third-party Employment Practices Liability (EPL) claim, and how can I protect my firm against this exposure?

The primary employment practices liability exposure facing firms is allegations brought by employees for such things as wrongful termination, discrimination and harassment.

However, clients, vendors and other non-employee third-parties can also sue a firm for discrimination, sexual harassment and sexual misconduct committed by the firm's employees. All firms regardless of size have some degree of exposure to third-party liability claims.

For example, an associate sent to a client's place of business to perform professional services could make continued unwanted sexual advances toward one of the client's employees. The client's employee could bring a sexual harassment suit against the firm even though he or she is not an employee of the firm.

Another source of third-party liability exposure is the Americans with Disabilities Act of 1990. Failure to provide building access to the disabled could be perceived as discrimination and could result in claims by non-employees.

Although most firms have a commercial general liability (CGL) policy to cover liability claims brought by third-parties, coverage for discrimination and harassment is routinely excluded. Firms need to closely examine their CGL policies to see if any coverage is provided for employment-related claims. A stand-alone EPLI policy that includes coverage for third-party discrimination and harassment claims provides the most comprehensive protection for a firm. More and more EPL insurance carriers are providing third-party coverage either as a part of the basic policy language or as an endorsement with an additional premium. The LACBA endorsed EmployerGard Employment Practices Liability policy specifically includes third-party coverage with no additional premium charge.

 

The two articles above, "The Employment Application" and "Q&A" are of a general nature and are not intended as specific legal advice. Readers should consult with a lawyer if they have specific concerns. Neither the Los Angeles County Bar Association nor Aon Direct Insurance Services assume any liability for how this information is applied in practice or for the accuracy of this information. These articles are reprinted with the permission of Aon Insurance Services and the EmployerGardian.

For additional information on employment practices liability insurance or the EmployerGard product, contact the Los Angeles County Bar Association's sponsored program, Aon Insurance Solutions, for information/applications at www.aonsolutions.com or 1-800-634-9177.

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