By: Brian Casaceli
Associate at Mirick O’Connell
Labor, Employment and Employee Benefits Group
Job applications can be an area with many traps for the unwary. Recruiting qualified applicants is a necessity for all employers – craft breweries included. To assist in the hiring process, breweries should prepare job applications that elicit information needed to identify and evaluate qualified applicants. In crafting a job application, breweries should be aware of state and federal employment laws governing what questions it may and, more importantly, may not, ask.
What Can, And Should, Be Included In A Job Application
Equal Employment Opportunity Statement
Every application should inform applicants that the brewery is an equal opportunity employer and will consider all applications for employment without regard to an applicant’s membership in a group or class protected by federal, state, or local law.
Similarly, to ensure qualified individuals with a disability under state or federal law are afforded an equal employment opportunity to participate in the application process, breweries should include a statement informing applicants to contact a designated individual at the brewery (i.e., the HR Manager) if they need a reasonable accommodation to complete the application process.
Work History Questions
Breweries should ask applicants to list prior employers, the positions and dates held, hours worked per week, and the applicant’s reason for leaving. Notably, when the application requests a candidate’s previous work experience, it should specifically inform the applicant that he/she may list any verified work performed on a volunteer basis.
To the extent a brewery intends to conduct reference checks with prior employers the applicant identifies, the brewery should have the applicant specifically authorize his/her present and former employers to disclose to the brewery information regarding the applicant’s prior employment, and release all parties from any liability whatsoever resulting from such disclosure.
Breweries may ask about the applicant’s educational background to the extent it is relevant to the requirements of the position for which the applicant is applying. Questions about the name of the high school/GED, college/university, trade school, level of education obtained, location, area of study, and degrees earned are all appropriate. Breweries should not, however, ask for graduation dates as such data could be used as a proxy to determine an applicant’s age and could provide fodder for an age discrimination claim from an applicant not chosen for the job.
If a brewery intends to conduct a check with an applicant’s educational institution, the applicant should authorize the institution to provide the brewery with pertinent information relative to the applicant, and release all parties from any liability whatsoever resulting from such disclosure.
Questions Not to Ask on a Job Application or During an Interview
Questions About Personal Characteristics Protected by Law
The Federal Equal Employment Opportunity Commission (“EEOC”) recommends employers not ask applicants about personal characteristics protected by law, including race, color, religion, sex, pregnancy, national origin or age. Brewers should also refrain from asking any similar questions during an interview with the applicant, or at any other point during the hiring process.
The EEOC further notes that job applications may not seek information concerning, and interviewers may not ask questions about, an applicant’s disability, questions that are likely to reveal whether an applicant has a disability, or questions that seek an applicant’s genetic information.
Criminal History Questions
In 2010, Massachusetts enacted “ban the box” legislation that prohibits employers from asking applicants about their criminal history on the initial employment application. Last summer, Massachusetts Attorney General Maura Healey warned seventeen employers in Massachusetts, and issued fines to four national employers with multiple locations in Massachusetts, for asking criminal history-related questions on initial job applications. Given the Attorney General’s heightened enforcement of the law, craft breweries are well-advised to remove any criminal history related questions from their initial job applications.
Massachusetts law does, however, permit an employer, in certain circumstances, to ask applicants about their criminal history after the initial job application, such as during an interview. Before asking such questions, a brewery should seek advice of legal counsel.
Salary History Questions
On July 1, 2018, an amended version of the Massachusetts Equal Pay Act (“MEPA”) went into effect. Except in limited circumstances, MEPA prohibits employers from asking applicants questions about their salary history at any point in the hiring process. Breweries may not, for example, inquire about the amount of money applicants make at their present job on an initial job application or during a subsequent in-person interview. (Breweries may inquire about an applicant’s salary history in limited situations: (1) to confirm wage or salary history information voluntarily shared by the prospective employee; or (2) after an offer of employment with compensation has been made to the prospective employee.)
Guidance from the Attorney General’s office advises employers that they may inquire about an applicant’s salary expectations (e.g. what the applicant is looking to make in the position for which they are applying). To the extent such an inquiry is made, breweries must be careful not to ask the question in a way that is designed to elicit the employee’s salary history.
Social Security Numbers
Generally speaking, although employers are not legally precluded from asking applicants to provide their social security number on a job application, brewers should avoid collecting a social security number until after an offer of employment has been made and the information is needed to conduct a background and/or credit check.
Lie Detector Tests
Employers in Massachusetts may not require an applicant to undergo a lie detector test as a condition of employment or continued employment. In fact, under Massachusetts law, all job applications must include the following statement:
It is unlawful in Massachusetts to require or administer a lie detector test as a condition of employment or continued employment. An employer who violates this law shall be subject to criminal penalties and civil liability.
A job application should conclude by having the applicant review and acknowledge the following:
- All of the information provided in the application is true, accurate and complete to the best of the applicant’s knowledge;
- Omissions or false statements may result in withdrawal of a job offer or termination of employment if the applicant is hired;
- If offered employment at the brewery, the acceptance of such employment will not cause the applicant to violate any other agreement to which he/she is bound (i.e. a non-competition or non-disclosure agreement);
- To the extent the applicant is hired for employment, he/she will be an at-will employee and will have no contractual employment rights; and
- An offer of employment may be conditioned on the results of pre-employment drug screening, criminal records and/or background check.
To the extent that a brewery seeks a credit check or an investigative consumer report as part of a background check, the brewery must comply with applicable state law and the Federal Fair Credit Reporting Act which, in part, requires that the applicant be provided a separate disclosure and authorization form. Given the law’s technical requirements, breweries are advised to seek legal counsel when such checks are necessary.
If a brewery intends to conduct pre-employment drug testing, the job application should explicitly identify this fact. Giving advance notice to applicants that they may be required to undergo a drug test as part of the application process will create a diminished expectation of privacy, making it harder for an applicant to bring an invasion of privacy claim against a brewery.
Until next time, cheers!