2014 New CA Laws 2015 New CA Laws Child Labor Contingent Workers Disabilities Discrimination Exempt vs. Non-Exempt Independent Contractors Industrial Homeworkers Interns Leaves of Absence Non-Compete Agreements Personnel Records
Privacy & Monitoring Sexual Harassment Social Media Telecommuting Unions Volunteers Wage & Hour HR Central Home
Privacy & Monitoring Sexual Harassment Social Media Telecommuting Unions Volunteers Wage & Hour HR Central Home
Employment Applications
Excluding Discriminatory Questions. California’s discrimination laws are often more stringent than those in other states. Avoid using applications that are drafted and printed in another state (for example, where your organization is headquartered) unless you carefully review them for compliance with California laws.
Interstate employers should use caution when implementing provisions and disclaimers for applications used in multiple states. Provisions and disclaimers can go unnoticed by candidates and, in some situations, create potential liability for you.
When reviewing your application, consider the impact of federal and state disability discrimination laws, which require reasonable accommodations for all people with disabilities. Many generic applications contain inquiries prohibited under these laws, such as “Do you have any health condition that may prevent you from performing the job for which you are applying?”
If you have employees in San Francisco, review the requirements regarding San Francisco's Fair Chance Ordinance, which regulates any inquiry regarding criminal history and prohibits criminal history inquiries during the initial application process. Separate applications for San Francisco employers are available.
Interstate employers should use caution when implementing provisions and disclaimers for applications used in multiple states. Provisions and disclaimers can go unnoticed by candidates and, in some situations, create potential liability for you.
When reviewing your application, consider the impact of federal and state disability discrimination laws, which require reasonable accommodations for all people with disabilities. Many generic applications contain inquiries prohibited under these laws, such as “Do you have any health condition that may prevent you from performing the job for which you are applying?”
If you have employees in San Francisco, review the requirements regarding San Francisco's Fair Chance Ordinance, which regulates any inquiry regarding criminal history and prohibits criminal history inquiries during the initial application process. Separate applications for San Francisco employers are available.
Excluding Questions Regarding Social Media Accounts. Employers are prohibited from requiring or requesting applicants to disclose information regarding their personal social media accounts. Specifically, employers are prohibited from requiring or requesting an applicant to:
Social media accounts can include Facebook, LinkedIn or Twitter accounts, for example. Social media accounts are defined by the law as “an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or account, or Internet Web site profiles or locations.”
These same prohibitions also apply to current employees. If you are interviewing to promote a current employee to an open position, you cannot request or require the disclosure of username or password to access the employee’s personal social media. There is an exception for investigations and employer-issued electronic devices.
Employers cannot retaliate against, discipline, discharge or threaten to discharge an applicant or employee for not complying with an employer’s request or demand to reveal personal social media information in violation of this law.
- Disclose a username or password for the purpose of accessing the applicant’s personal social media
- Access personal social media in the presence of the employer
- Divulge any personal social media
Social media accounts can include Facebook, LinkedIn or Twitter accounts, for example. Social media accounts are defined by the law as “an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or account, or Internet Web site profiles or locations.”
These same prohibitions also apply to current employees. If you are interviewing to promote a current employee to an open position, you cannot request or require the disclosure of username or password to access the employee’s personal social media. There is an exception for investigations and employer-issued electronic devices.
Employers cannot retaliate against, discipline, discharge or threaten to discharge an applicant or employee for not complying with an employer’s request or demand to reveal personal social media information in violation of this law.
Application Provisions That Protect You. The sample applications contain several damage control provisions. For maximum legal protection, when you hire a candidate, each of these provisions should become part of independent agreements between you and your new employee. The sample applications include the following important provisions:
Have the applicant initial each of the provisions in the application separately in a space provided in the margin. By drawing attention to these important provisions, you will make it less likely that an applicant will later be able to successfully claim that he/she was not made aware of what he/she was signing. Though not foolproof, these provisions can keep you out of court or tip the balance of evidence in your favor.
- An authorization to check all references listed by the applicant. Because you can be liable for negligent hiring if you fail to check an applicant’s references, this damage control provision will help protect you from a claim that the applicant’s privacy was invaded when you do check references. It will also be easier to gain information from former employers if they are aware that their former employee has authorized disclosure to you. Be aware, however, that this release cannot protect you against claims of intentional misconduct or employment discrimination, such as deliberately asking a former employer for protected information, like medical history or marital status. Keep in mind, the employee’s authorization for you to check references applies only to the employment application and cannot be used after hire.
- A statement that all answers given by the applicant are true, and any omissions or false information are grounds for rejection of the application or the employee’s termination. Court decisions allow you to use false information on a job application as evidence in your defense against a wrongful termination lawsuit, even if you did not discover the information was false until after the employee left.
- An initial statement that any future employment will be on an at-will basis. This clause helps to preserve the presumption that employment is at-will, and states that any contrary representations must be contained in a signed agreement to become binding.
Have the applicant initial each of the provisions in the application separately in a space provided in the margin. By drawing attention to these important provisions, you will make it less likely that an applicant will later be able to successfully claim that he/she was not made aware of what he/she was signing. Though not foolproof, these provisions can keep you out of court or tip the balance of evidence in your favor.