72 / 108
ing a resume does not afford you that
opportunity. On the application, it’s best to
keep it simple and ask only those questions
that are absolutely necessary. For example,
you’ll need to know how to contact the
employee, but you don’t need to know
whether the applicant rents or owns his own
house. And, indeed, that type of question
can be construed to show you are discrimi-
nating against a protected class.
First, let’s review what
should
be on your
employment application.
• Include an EEO statement up front
stating that your company conforms to
local, state and federal laws and does not
discriminate.
• Ask for name, address and contact
information.
• Ask specifically if the applicant is a U.S.
citizen or legally authorized to work in the
U.S. (assuming your company is located in
the U.S.) and notify the applicant that
documentation will be required if hired.
• Ask if the applicant is able to perform
essential functions of the job.
• Ask for a list of past employers and pro-
vide a check box to get permission for
employers to be contacted.
• Ask the applicant to list education with
degrees earned and a yes/no check box
indicating graduation. Do not ask for dates.
• Do not ask any criminal background ques-
tions. These you can ask later in the process
or once the applicant is offered a position.
• Ask for references, preferably professional.
• Have an employment-at-will statement.
• Require all applicants to sign verifying
that all information is true and accurate
so that you can hold them accountable
for any false information provided.
In general, the Fair Labor
Standards Act places no limit
on the number of hours or days
that an employee age 16 or
older may be required to work.
In general, employers are free
to require the employee to
work as many hours or days as
necessary to complete all their
job duties.
That said, some states such
as California and New York
require a day of rest (24 con-
secutive hours of time off dur-
ing a workweek) and some
require a minimum break time
over a one-month period. Our
best advice is to check your
state laws, check your policy
handbook and remember that
exhausted employees may not
be happy, engaged or produc-
tive employees.
Q.
If an employee leaves his
current employer, starts at a
new company and updates his
LinkedIn profile with his new
position at his new employer,
would that affect a non-solicita-
tion agreement? Clients may
decide on their own to move
their business based on the
notification from LinkedIn.
It’s important to remember
that LinkedIn is intended to
serve as a form of online
resume. It is doubtful that the
courts would view simply
updating his employment sta-
tus as an active solicitation of
your clients given how most
non-competes are designed.
If he contacts your clients
via LinkedIn to let them know
that he’s moved and to
What Not To Ask
Acceptable Alternatives
Age
Age
How old are you?
Are you over 18 years of age?
How much longer do you plan to work
What are your long-term career goals?
before you retire?
What schools did you graduate from
What is the date of your high school
and what degree did you earn?
graduation?
Nationality
Nationality
When or where were you, your parents
Are you legally permitted to work in
and your spouse born?
the United States? (Do not require
What is your original or maiden name?
documentation until post-hire)
What is your lineage, ancestry or
What languages are you fluent to
national origin?
speak/read/write in?
Religion
Religion
What is your religion or religious
What days are you available to work?
practices?
Are there any days you cannot work?
What holidays do you observe?
Are you able to work our required
schedule?
Race
Race
What is your race or ethnic background? Do you anticipate having any difficulty
Do you have a problem working with
working with others or performing
o-workers of a different race?
the duties of the job?
Health & Disability
Health & Disability
Do you smoke, drink or take drugs?
Are you able to perform the physical
Are you in good health?
duties of the job with or without
Do you have any disabilities?
reasonable accommodation?
70 •
PPB
• JUNE 2015
THINK
Continued On Next Page
Continued From Previous Page