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Is My Employment Application Both All-Inclusive and in Compliance with Employment Discrimination Laws?

November 15, 2006

An all-inclusive employment application allows for a more efficient hiring process. Your employment application should ask potential employees to account for any gaps in employment and make it clear that you will not tolerate the omission of information on the application. Such information can become critical in defending you against potential law suits. At the same time, you as an employer are restricted from asking certain questions which have been deemed to be overbroad? or discriminatory in nature. Employers are prohibited from asking if a person has ever been convicted of a crime on an employment application, but not if he/she has ever been convicted of a felony which has not been expunged or sealed by a court. Likewise, while questions concerning a potential applicant’s age, race, religion and national origin are generally prohibited, an employer is still permitted to ask an applicant if he/she is under the age of 18.

The more information you have at your disposal as an employer, the better equipped you will be to make the right hiring decision for you and your business. It is, however, critical that employers give careful consideration to the information asked on employment applications in order to comply with both state/local law and the Equal Employment Opportunity Commission.

Is my employee handbook comprehensive and up-to-date?

As an employer, you want to shield yourself and your business from legal liability. One of the best ways to do this is to provide your employees with the most comprehensive and up-to-date handbook possible. Your handbook should include sections detailing both company policies (i.e., business hours, time off, employment classifications, disability leave) and applicable federal employment laws (i.e., Equal Employment Opportunity, Workers? Compensation, Americans with Disabilities Act).

Likewise, it is helpful for your company to include a written policy for employees who wish to report claims of workplace discrimination and/or harassment. Such a reporting structure usually allows for an employee to report a complaint with someone other than that employee’s immediate manager/supervisor. By providing a problem-solving process, you can internalize employee concerns and address them efficiently and fairly.

It is also a good idea to continually update your handbook every two years to reflect changes in your company’s policies and/or federal law. Obtaining a signed acknowledgment allows an employer to make sure all employees become aware of such changes.

Have I properly completed my I-9 forms?

Under the Immigration Reform and Control Act of 1986 (IRCA), employers must verify that all employees are eligible to work in the United States by having them complete an Employment Eligibility Verification form, also known as an I-9 form. As an employer, you must ensure that your employees fully complete, sign and date Section 1 of their I-9 forms. Every employee must present original documents to establish his/her identity and employment eligibility within three (3) business days of the date of employment. You must then examine those documents to make sure they are not false, and complete Section 2 of the I-9 form. The I-9 form must then be kept for three (3) years after the date of employment begins or one year after the person’s employment is terminated, whichever is later.

As an employer, you also have a duty to refrain from knowingly accepting/using false employment eligibility documentation. Failure to take these important steps may result in the assessment of civil and/or criminal penalties.

Have I displayed the proper postings in my place of business as required by state and federal law?

Most states require you to post signs detailing Minimum Wage, Notice of Workers? Compensation Carrier and Coverage, Disability Insurance, etc. Likewise, employers are required to post signs describing various federal laws, including Family and Medical Leave Act, Equal Employment Opportunity, the Fair Labor Standards Act (Wage and Hour Laws), the Employee Polygraph Protection Act, the Occupational Safety and Health Act, and the Uniformed Services Employment and Reemployment Rights Act (Military Leave).

These signs must be prominently posted in a place where they are likely to be seen by all employees. Furthermore, since the beginning of 2006, many states, including New York, New Jersey, Connecticut and California, have undergone changes regarding their state labor law postings. As an employer, you should be aware of these changes and update your posters accordingly.

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