One of the most effective uses of an application form is to enable an employer to directly ask an applicant if he or she has a criminal record. Unfortunately, many employers use language in their applications that is either too narrow, too broad, or too ambiguous. Each of these mistakes can put an employer in a difficult situation. Let us go over this language in detail—

Too Narrow

An example of a question that is too narrow is to only ask about felonies. Many standard employment applications only ask if an applicant was convicted of a felony. That allows the application form to be used in all states.  However, misdemeanors can be very serious. Under California law, for example, most employers would want to know if an applicant had a conviction for offenses such as fighting with a police officer, illegal possession of weapons, spousal abuse or child abuse, commercial burglary, assault and many other offenses. Yet in California and other states, these can all be misdemeanors. Many serious offenses are plea-bargained down to misdemeanor offenses as well. Without the proper language, an applicant can honestly answer that he or she has not been convicted of a felony even though there may be serious misdemeanor convictions an employer needs to know about. A best practice would be to utilize an application form that asks about past criminal conduct in the broadest language allowed by law in your state

Too Broad

On the other hand, some employers ask questions that are so broad that it improperly covers matters that are protected. An example may be, “Have you ever committed a crime?” Or “Have You Ever Been Convicted of Any Crime?”   There are a number of limitations under state and federal law concerning what an employer may legally ask about or “discover” concerning an applicant’s or employee’s criminal record. In fact, it can be a misdemeanor in California for an employer to knowingly violate some of these rules. Furthermore, if an applicant is placed in a position where he is forced to reveal information about himself that he is legally entitled not to disclose, an employer can actually be sued in some states for “defamation by compelled self-publication.” In other words, if forced to say something defamatory about himself, an applicant may be able to file a lawsuit against the employer for defamation.

Too Ambiguous

The third mistake is to ask an applicant, “Have you ever been convicted of a felony or serious misdemeanor?” or “Have you ever been convicted of a crime of violence?” or a similar question that calls for an opinion. The problem occurs when an applicant is called upon to make a judgment about his own offense. To determine if a crime can be labeled as “serious” can call for a very complex legal and factual determination on which lawyers and even judges could disagree. At times an applicant may be simply confused by court proceedings and may not understand the results or what they mean. By asking a question that is ambiguous and leaves waffle room, an applicant can argue that in his or her mind the offense was not serious and a “no” answer was truthful. That is why a question cannot contain any ambiguity.

Reprinted from ESR Newsletter and Legal Update

Reprinted from The Safe Hiring Manual by ESR President, Lester S. Rosen

Some employers still hire based primarily upon a resume. This can be a major mistake from the viewpoint of safe hiring. For an applicant, a resume is a marketing tool. Many resumes start by describing the type of job that an applicant is looking for, or a statement of skills and experience. In a resume, an applicant picks and chooses whatever information he or she wants to share. Many job hunters use a resume writing service, and while there is nothing wrong with using a service to prepare a professional looking resume, the service typically will attempt to enhance the applicant’s experience. The service’s goal is to get the applicant to the interview stage.

Employers, however, need facts in order to make hiring decisions.

What are some of the dangers in using a resume?

First, job applicants often feel compelled to reveal things about themselves that an employer does not need, or legally should not, know. Resumes often reveal volunteer affiliations, hobbies, interests or memberships in groups that reveal such prohibited information as race, religion, ethnicity, sexual orientation, or age. For example, a resume may reveal a person does volunteer time with a church, or belongs to a group that is clearly associated with a particular race or nationality. The problem is the Federal EEOC and states’ rules prohibit an employer from obtaining or using such information. Having this information in the form of a resume in the employer’s file is not a good practice in the event the employer is ever the subject of civil litigation or a government investigation into their hiring practices.  By using an application form, an applicant cannot volunteer irrelevant information an employer should not possess.

Conversely, resumes may not give an employer all the information needed to make an informed hiring decision. With a proper application, an applicant cannot skip over jobs he or she would rather not mention. An application can allow an employer to spot unexplained employment gaps. Also, job applicants typically do not self-reveal their criminal records in a resume.

In addition, it is much easier for an employer to prescreen candidates using a standardized application. An employer trying to screen a large number of resumes can more easily compare applicants.

Finally, an application form can contain critical elements that an employer may want to convey to the applicant, or critical questions that an employer way want to ask, such as whether the applicant has a criminal record.
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