Date: October 2018
A key component in gathering information about potential new hires is the employment application. MCIT recommends that members periodically review their employment application to see if it has a clean bill of health: is it legally compliant and does it meet the needs of the public entity?
The following are questions members should ask when examining their employment application.
Does the Employment Application Contain a Tennessen Warning?
The Minnesota Government Data Practices Act (MGDPA) requires that a government entity give a Tennessen Warning or data privacy notice to an individual any time it collects private or confidential data.
Under the MGDPA, there is a presumption that all data collected on employment applicants are private, unless information is specifically classified in the statute as public.
For job applicants, only the following information is public:
- veteran status
- relevant test scores
- rank on eligibility list
- job history
- education and training
- work availability
All other information requested from applicants, including the applicant’s name at the time he or she is applying for the job, is considered private personnel data. Note: The applicant’s name may become public later in the process if certified as eligible for appointment to a vacancy or when considered to be a finalist by the appointing authority.*
Thus, to collect, store and use this data, the government entity must give the applicant a Tennessen Warning at the time of or prior to collection.
The Tennessen Warning must inform the individual of the following:
- purpose and intended use of the data requested
- whether the individual may refuse to supply or is legally obligated to supply the data
- any known consequences of supplying or not supplying the data
- the identity of other persons authorized to receive the data
Has the Applicant Been Informed about the Minnesota Veterans Preference Act?
Under the Minnesota Veterans Preference Act (Minn. Stat. § 197.447, et seq.), a veteran or disabled veteran applicant or an eligible spouse of a deceased or disabled veteran may invoke special points for consideration during the hiring process. The Veterans Preference Act requires public employers to inform applicants about the availability of preference points.
Public employers often place this notification on the employment application, along with a space for the applicant to request veterans preference points. Some public employers choose to use a separate form for this notification. In both cases, the notice should also indicate that proof of veteran or disabled veteran status may be required before preference will be granted.
Does the Application Ask for Information that May Be Illegal or Legally Problematic?
Although the primary function of the job application is to gather information from the applicant, public employers should not address a number of topics on the application. For example, the application should not have any questions related to protected class status.
This includes questions about:
- creed or religion
- national origin, including birthplace or native language
- marital status
- disability, including current or past health conditions and inquiries into alcoholism, past drug use, or alcohol or drug treatment
- status with regard to public assistance, past or current receipt
- age, including date of birth or year of high school graduation
- sexual orientation
- local human rights commission activity
- pregnancy/children, including current or future family plans
- genetic information
Also job applications should not ask for:
- Social Security number
- maiden name (but an employer can ask all applicants if their records or references would know them by another name)
- past workers’ compensation claims
- litigation or claims against any past or present employers involving a discrimination claim
- prior sick or medical leave use (but an employer may ask for information about unexcused absences unrelated to illness or the applicant’s ability to meet attendance requirements that are essential functions of the position)
- need for reasonable accommodations to perform the job (but an employer can ask about reasonable accommodations to complete the application or in the interview process)
Does the Employment Application Impermissibly Ask about Criminal Record or History?
Minnesota Statutes, Section 364.021 prohibits employers from inquiring into or considering a criminal record or history of a job applicant until the applicant is selected for an interview by the employer. There are exceptions for positions for which employers have a statutory duty to consider criminal history or conduct a criminal background check when hiring, such as law enforcement.
Public employers can notify applicants that it may request information regarding criminal history if the applicant is selected to interview for the position or that a criminal background check may be a requirement for the job.
Does the Application Contain Sufficient Certification, Authorization and Release Language?
On most standard employment applications, the final section includes a declaration by the applicant attesting to the accuracy and completeness of the information provided. It also typically includes an acknowledgment that any false or misleading statements or information provided in the application process may be grounds for future termination should the applicant be hired.
The application should also have a section authorizing the employer to contact the applicant’s former employers, references, etc. and granting these individuals the authority to release information regarding the applicant’s job performance and their fitness and qualifications.
The application may also contain a release of liability for the former employer providing this information and the prospective employer receiving this information. Sometimes this authorization and release is in a document separate from the employment application.
Finally, if applicable, the public employer may want to include a section that confirms that no offer of employment is valid or binding until the appointing authority, which may be the board, formally approves the employment.
Additional information about employment applications, including sample language, can be found in the MCIT Resource Avoiding Pitfalls in Hiring. As always, MCIT recommends consulting with the county attorney or other legal counsel with specific legal questions.