The Application Process

More rules and restrictions apply to the application process than one may think. Employers are free to decide whether applications will be accepted or retained when no positions are available. However, there are requirements when an application is submitted for a position that is available and how long they will be accepted and retained. The main concern is to avoid disparate treatment by adhering to a consistent policy that applies to all. No one should be discouraged from applying.

Applications and other records produced in the recruiting process must be kept for at least one year from the date when a hiring decision was made. When a complaint alleging discrimination is filed, records must be retained until there has been a final disposition. Records related to people hired must be retained throughout their employment and for at least one year thereafter. (29 C.F.R. 1602.14 (2017))

What defines an applicant? When does someone staring at a HELP WANTED sign in the window of that two-person diner mentioned earlier go from a passerby to an applicant? The federal government provides a broad definition that includes everything from completing an application to making interest known by other means. That might mean a nod from that person reading the sign at the diner.

When someone voluntarily withdraws their application, formally or informally, they are no longer an applicant. (44 F.R. 11998 (March 2, 1978))

Use of the Internet for recruiting and acceptance of applications has prompted employer concerns about retention practices and requirements. A definition applying to general circumstances has yet to be issued.

Throughout the application process there is much information shared between the employer and potential candidates. This requires attention to be mindful of these interactions and information that can be given as a result.

 

Protected Classes

Some applicants share a lot of information in applications and during interviews, such as mentioning that they are pregnant, have a bad back, are planning to start a family, are married or in the process of a divorce. Employers must ignore the TMI (too much information) factor in making decisions about hiring. Where they must be proactive is being vigilant about preemployment inquiries concerning protected class characteristics. Things to keep in mind include queries about protected class characteristics, uniform criteria for applicants, and avoidance of questions that have a high probability of disparate impact.

What can result from inquiries that appear to target protected classes is that it has the potential to make an unsuccessful candidate suspicious of the employer’s motives and can provide direct or circumstantial evidence in support of a finding of discrimination.

 

Medical Inquiries

The Americans with Disabilities Act (ADA) prohibits inquiries about disabilities prior to extending a conditional offer of employment. When a conditional offer is extended, an employer can ask about restrictions or limitations on the ability to perform the required duties. A medical exam can be conducted, if warranted. Then, the consideration entails whether the applicant can perform the duties of the position with reasonable accommodation.

Offers are "conditional" based satisfactory results of a medical exam – excluding genetic tests. When disabilities are at issue, employers cannot discriminate against qualified, disabled persons who can perform the essential functions of the position, with or without reasonable accommodation.

 

Social Media and Recruitment

Accessing social media sites to learn more about an applicant than what is curated in a resume is commonplace with some employers. A reversal of the practice is unlikely.

A problem inherent with accessing social media sites is that information about protected class characteristics – including race, gender, age, pregnancy and religious beliefs – can become known at a time when applications are screened, and applicants are sometimes eliminated. Reasons can become suspect. Recommendations for avoiding that include outsourcing of checking social media sites. Many employers outsource background checks. The process provides a shield between the employer and social media sites where it might learn about protected class characteristics.

The text indicates that the frequency of employers demanding login access to social media sites is disputed. Whether fact, fiction, or overstated, 21 states have enacted laws limiting employer access to the social media accounts of employees and applicants. More are certain to follow.

Employers should exercise caution, and job applicants should be aware that the Internet is a wide-open, vast place where anything is easily discoverable. Search with discretion and good purpose. Post with an awareness that the Internet is not like the diary of old that can be locked away.