Employment Screening Resources
Web site: www.ESRcheck.com

It is generally recommended by human resources professionals and labor lawyers that firms require the use of an employment application instead of resumes during the hiring process. There are some firms however that will accept resumes. However, there can be several potential problems with utilizing resumes instead of applications.

First, a resume may contain information that may not be permissibly used in a hiring decision. Secondly, all resumes are written differently, and the lack of uniformity in the hiring process can lead to claims of disparate treatment. Third, resumes typically do not give an employer all the information that is needed. Although a resume may be a valuable addition to the hiring process, an employer enjoys legal and practical advantages by requiring an employment application. Fourth, it is easier to pre-screen candidates using applications, rather than having to read through resumes that come in a variety of formats. Finally, a standardized application form may make it easier to spot unexplained gaps in employment. That is critical in the hiring process.

From the point of view of safe hiring, it is recommended that all applications contain the language addressing the issues described below. If a firm uses a resume system instead, there should be a separate form addressing the issues described below:

1. That any untruthfulness or material omissions are grounds to terminate the hiring process, or employment, no matter when discovered. This is critical in the situation where an applicant is not truthful about a criminal conviction. As discussed in other ESR publications, a criminal conviction cannot be used to automatically exclude a job candidate, without taking into account the nature of the offense, the nature of the job and when the offense occurred. However, if a person has lied about a criminal act, then the dishonesty may become the basis for not offering a position.

2. There should be the broadest possible legal language asking about criminal convictions or pending cases. The attached example has suggested language. Some employers make the mistake of only asking about felonies, and not misdemeanors. However, misdemeanor convictions can also be very serious. For example, if a person brings a concealed weapon to the workplace, that is most likely a misdemeanor. However, that is something an employer would want to know about. However, in some states there are limits on certain misdemeanors. Also, the application should indicate that a conviction does not automatically eliminate someone from employment. Please see other articles on this web site for more details.

3. As discussed more fully in the ESR special report, "Complying with the Fair Credit Reporting Act in Four Easy Steps ," a firm that uses a third party to perform a pre-employment screening must utilize a consent and disclosure form on a document separate from the rest of the application. Congress specifically intended this in order to ensure that the disclosure and consent was not diluted by other language. Forms that contain a release along with other unrelated terms (such as language indicating that employment is at will) should not be on the same page as the consent for a background release. The Disclosure and Release may be on the same form however, but must be separate from the application.

4. ESR also recommends that the employer ask about past addresses for the last seven years. This is typically done on a form provided by a screening company. Since there is no such thing as a national criminal record search for most private employers, past addresses are important to determine the scope of a criminal record search.

5. It is also critical to indicate that any release for a background investigation is valid for future screening for retention, promotion or reassignment, unless revoked in writing. This is absolutely critical for situations where an employer needs to conduct a post-employment investigation, such as a sexual harassment investigation, or for workplace problems.

The following language is offered as an example of the type of language that should be considered in every application. If an employer utilizes a resume system, then the following language can be contained on a separate form signed by the applicant that is added to the resume:

May we contact your current employer for references? YES NO

Will you be able to perform the essential job functions for the position you are applying for with or without reasonable accommodation? YES NO

Have you ever been convicted of any crime, (excluding convictions for marijuana related offenses for personal use more then two years old, convictions that have been sealed, expunged or legally eradicated, or misdemeanors for which probation was completed and the case was dismissed by court? (Note: A Yes response does not automatically disqualify your application.) YES NO If Yes, please explain.

Are you currently out on bail or released on your own recognizance pending trial? YES NO If YES, please explain.

The above information is true and correct. I understand that the hiring process will be terminated, or in the event of my employment by the Company, I shall be subject to dismissal, if any information that I have given in this application, or in any resume or interview or any part of the hiring process is false or misleading or if I have failed to give any information herein requested, regardless of the time elapsed after discovery.

I authorize the Company to inquire into my educational, professional and past employment history references as needed to research my qualifications for this position. I hereby give my consent to any former employer to provide employment-related information about me to the Company and will hold the Company and my former employer harmless from any claim made on the basis that such information about me was provided or that any employment decision was made on the basis of such information. I further authorize the Company to obtain any credit and consumer check, including criminal records, driving records, or worker compensation records. I understand that if a third party is used to make some inquiries, that the Company will provide a separate Disclosure and Release required by law that will permit the Company to make such inquires through the services of a third party.

I understand that nothing in this employment application, the granting of an interview or my subsequent employment with the Company is intended to create an employment contract between myself and the Company under which my employment could be terminated only for cause. On the contrary I understand and agree that, if hired, my employment will be terminable at will and may be terminated by me or the Company at any time and for any reason. I understand that no person has any authority to enter into any agreement contrary to the foregoing.

If employed, I will be required to provide original documents which verify my identity and right to work in the United States under the Immigration Reform and Control Act (IRCA) of 1986. The document(s) provided will be used for completion of Form I-9.

I hereby acknowledge that I have read and agree to the above statements.

Signature

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