MGMT 4300 | SPRING 2020

CH 09: Application Forms and Reference Checks

❖ Chapter 9 Learning Objectives:

➢ Describe different assessment methods and how each is best used
■ 1. Application Forms & Biodata Assessments
■ 2. Reference Checks
➢ Identify ways to reduce the adverse impact of an assessment method

❖ Assessment Methods:
➢ Screening Methods - narrow the pool of job candidates
■ Resumes and Cover Letters
■ Job Applications
■ Biographical Information
■ Telephone Screens
➢ Contingent Methods - will determine who is not eligible for hire
■ Medical and Drug Tests
■ Background Checks
➢ Evaluative Methods - help us determine who is eligible to hire
■ Cognitive Ability Tests
■ Values Assessments
■ Personality Tests
■ Job Knowledge Tests
■ Behavioral Interviews
■ Job Simulations
■ Work Samples

❖ Comparison of Commonly Used Assessment Methods:

 ➢ We must look at Validity of the Assessment, Applicant’s Reactions to the
Assessment, Cost to the Company, Usability, and Legal Impact.
■ Applicant reaction demonstrates Procedural Justice (do the applicants
feel that the policies/procedures of the selection process are fair – how
were they treated throughout the recruitment process, were they kept up
to date on what’s next, and did the selection tests/interviews reflect
what’s required of the job?)
➢ Note the following as you review the exhibit:
■ 1) Cognitive Ability (Intelligence) Tests – Easy to Administer but High
Adverse Impact!
■ 2) Structured Interviews – High Validity but High Costs to
Design/Administer
■ 3) Work Samples – Good Procedural Justice but High Cost to
Development/Administer (because they are unique to the
organization/position, can’t buy from vendors – not commercially

❖ Application Forms:
➢ Application Forms consists of a series of questions designed to provide
information about the general suitability of applicants for jobs to which they are
applying
➢ The application makes it possible to:
■ 1. deciding whether applicants meet the minimum requirements of a
position = ARE YOU ELIGIBLE
■ 2. assessing and comparing the relative strengths and weaknesses of the
individuals applying for the position = start narrowing the applicant pool.
➢ Be careful -- application forms can provide information that unfairly discriminates
■ Title VII and other laws prohibit discrimination
■ For example, when application information UNRELATED to a person’s
ability to perform a job (such as gender or age) is collected, that
application data can be used for discriminatory selection practices
■ Remember these types of questions (those unrelated to a person’s ability
to perform the job) on application forms can hurt protected classes

❖ Biodata:
➢ Biodata is application information that is empirically developed (proven through
observation or an experiment – can be analyzed quantitatively or qualitatively)
and scored in a way to maximize prediction
■ Core feature is that it is self-report data provided by the applicant
 ■ It reflects historical data that captures the applicant’s past behaviors and
experiences in work contexts, educational settings, and even in various
community or extracurricular activities

❖ Classification of Biodata:
➢ There are two ways to categorize biodata:
■ 1) Response Type
● Sample Response Type Question:
◆ Have any of your family ever worked in this industry?
➢ ____ Yes ____ No
■ 2) Behavior Type
● In my leisure time, the activities I most enjoy doing are:
◆ Team Sports
◆ Individual Sports
◆ Constructing Things
◆ Reading
◆ Social Activities
◆ None of the Above

❖ Evaluating Application Forms as Predictors:

➢ Applications/Biodata can predict performance, productivity, etc.:
■ Must begin with a job analysis to ensure that only job related questions
are posed
➢ Self-reported application information may be distorted or embellished (risk); to
reduce this:
■ Some common problems include past salaries received, companies
worked for, or educational degrees earned.
■ In regards to college background, applicants frequently misrepresent a
specific degree. (MBA over MS because it might get them job)
■ Applicants are most likely to distort those items believed to be related to
whether a job offer will be made and the salary given!!
➢ Employers can take several steps to lessen the problems of applicant errors or
distortion (Exam 3 Concept – read/star steps 1-4 below).
■ 1. Applicants should be told that the information they give will affect their
employability.
■ 2. Applicants should be required to sign a statement certifying the
accuracy of the information they provided on the form.
■ 3. Warn the applicants that the information will be verified.
 ■ 4. AND in states with an employment-at-will doctrine such as Texas, an
employer should be sure that NO contract of permanent employment is
implied in the employment application!!
● It’s a good idea to include the employment-at-will disclaimer (CYA)
which usually says something along the lines of “I understand that
if hired, I will be an employee at will and I can be terminated at
any time, with or without cause, with or without notice”
➢

❖ Employment-at-Will Concepts:
➢ AT-WILL EMPLOYMENT: Employment relationship where there is no contractual
obligation to continue for an agreed time
■ Agreement renews itself every second, until it doesn’t
■ Either party may terminate, without liability to the other
➢ Other types of employment relationships include terms of a collective bargaining
agreement, or individual contracts that define terms and duration
■ the relationship is not governed by the will of the parties, but rather by
the contract
➢ Most private-sector employment is at-will
➢ KEY CONCEPT AND GENERAL RULE
■ Either party may terminate the employment relationship, at any time, for
a good reason (incompetence, better offer), or no reason-at-all (including
many stupid reasons) – just not a bad reason
● Esp. if the reason is based on race, gender, religion, national
origin, age, or disability

❖ Legal Implications of Application Forms

➢ More questions on the application may not be better!!!
■ Federal and state laws affect the kinds of information that can be
requested
■ Assumed that all questions are used in making a hiring decision
● Burden of proof on employer to prove questions are fair and not
discriminatory
➢ Avoid questions that:
■ Disproportionately screen out minority group members or members of
one sex
■ Do not predict successful performance on the job
■ Cannot be justified as a business necessity
 ➢ This type of information is viewed as “INADVISABLE” (remember this term for the
exam)– the questions are not necessary illegal but due to their phrasing, it’s best
not to ask them!
■ Many questions regarding Age, Sex, or Marital Status are NOT necessarily
prohibited by law, but they raise some dangerous issues and employers
are advised to avoid them
■ The areas that are most often violated regarding applications include:
● Education (where it’s NOT a business necessity), Arrest Records,
Physical Disabilities, Age and Gender
● An employer actually has NO right to the knowledge of your
gender UNLESS gender is a (BFOQ)

❖ Composition of Application Forms:

➢ Job Applications consist of two major parts:
■ 1. Instructional information for completing and submitting
● For instance, employers should consider stating in the instructions
that an applicant giving unsolicited information on the application
will be rejected
◆ You may be wondering why on earth this might be
important. Well, unnecessary information can be used by
rejected applicants to argue that they were turned down
for an unlawful reason!
■ 2. Questions for the applicant
➢ Instructions for applicants:
■ Should be clear
■ Should prohibit giving unsolicited information
■ Should state that disabled applicants can request reasonable
accommodation
■ Should state the form has been reviewed to make sure it is fair and job
related
■ Should address privacy concerns and should be fair
■ A couple other items to consider include compliance with ADA
(Americans with Disabilities) and Privacy Laws: (Exam 3 Concept)
● Employers must state that disabled applicants can request
reasonable accommodation in completing the application – this
allows them to be in compliance with the Americans with
Disabilities Act.
● Since a key concern in today’s world is privacy --- there is definitely
value in clearly stating who will see the information or how
 applicant responses will be used. This helps put the applicant’s
mind at ease.
➢ Questions for applicants:
■ Should not request information other than that necessary for initially
judging qualifications
■ Should ask job-related questions only
■ Should not ask for personal information
■ Should avoid discriminatory questions
➢ Essential Content:
■ Applicant’s contact info (phone, address, etc.)
■ Work experience
■ Level of education and training received
■ Skills possessed
➢ It’s recommended to use multiple application forms for different types of jobs in
an organization.
➢ ONLY Employers covered by various federal and state requirements must collect
and report demographic information. (UNT must do so) Other Employers are
not required to collect demographic information on the application form.
■ With non-government employers, this information has to be voluntary
and it should be separate from the application
➢ In general, the lower the organizational level of a job or job class, the shorter,
less detailed the content of the application.

❖ Application Form Questions: Appropriate or Inappropriate?

➢ 1. What was your maiden name?
■ INAPPROPRIATE because it can indicate marital status or national origin
AND should be avoided! Instead ask “What is your name?” (okay to ask
for assumed names/nicknames but only for background check)
➢ 2. Are you at least 18 years old?
■ OK – avoid directly asking their age or date of birth due to the Age
Discrimination in Employment Act (ADEA)
➢ 3. What type of organizations do you belong to?
■ INAPPROPRIATE UNLESS THIS QUESTION IS DIRECTLY RELEVANT TO A
BFOQ.
● Questions about organizational activity outside of work are likely
to solicit protected information such as the individual’s religion,
national origin, marital status, etc.
➢ 4. Would you please submit a photograph with your application?
 ■ INAPPROPRIATE – unless it is relevant to a bona fide occupational
qualification
● For example, an employer hiring a hair dye model may require a
photograph during the recruitment phase as the model’s hair
color is a BFOQ!
➢ 5. What is your country of citizenship?
■ INAPPROPRIATE – consideration of an applicant’s citizenship may
constitute discrimination on the basis of national origin
● Instead ask “Do you have the legal right to work in the United
States?”
➢ 6. Have you ever been arrested?
■ INAPPROPRIATE – Arrest information is illegal (does not establish guilt
and should be removed from the screening process)
● An employer can consider the relationship between a conviction
and suitability for a job. When questions are used, there should
be a statement that factors such as age at time of offense,
seriousness of violation, and rehabilitation will be considered
ALONG with how the nature of the job relates to the convictions.
● You MUST consider nature of the job & how it relates to
convictions
● I want you to think of Former Offenders as the latest Protected
Class! (currently in TX, no limitations on how far back you can
screen for on criminal history and they can ask about
misdemeanors ----- this differs from state to state AND within
states. For example, Austin has recently passed some laws in
regards to looking at criminal history so it may even vary based on
city)

❖ Application Form Questions: What’s in a Name, Address, or Graduation Year?

➢
Demographic Factor Possible Source of Unconscious Bias

Name Often reveals race and gender.

Studies show that “black-sounding” names result in fewer callbacks than
“white-sounding” names on resumes with identical credentials

Address Possible proxy for race or income

Dates, particularly for Often indicates age.

educational milestones Older candidates - less likely than younger ones to be called in for an interview.
Hobbies and Interests Could reveal religion, age, or whether the person has children

Volunteer Work May indicate religion, race, or political affiliation

Name of College Some experts point to unconscious biases around non-Ivy-League schools or
colleges that are rivals of the hiring manager. Can also be linked to race.
➢

❖ Reference Checks (PREDICTOR of job success): Nature and Role of Reference Checks
➢ The collection of information about prospective job applications from people
who have had contact with the applicants
➢ The information is used (predictor of job success):
■ (a) to verify information given by the applicant
■ (b) as a basis for predicting job success or screening out unqualified
applicants
● That is, they detect the unqualified rather than identifying the
qualified!
■ (c) to uncover background information not provided by applicants
➢ Four types of information solicited through reference checks:
■ (a) employment and educational background
■ (b) appraisal of character & personality
■ (c) applicant’s job performance capabilities
■ (d) willingness of reference to rehire the applicant

❖ Reference Checks:
➢ Legal Issues:
■ Discriminatory Impact and Defamation of Character
● A few cases have dealt with discriminatory impact through
reference checks
● Defamation claims can be brought against the former employer
(the one giving the reference)
◆ The possibility of libel or slander suits discourages
employers from providing reference information
◆ The possibility of negligent hiring charges encourages
prospective employers to use reference checks
◆ The tendency of reference givers to go beyond necessity in
describing people is #1 issue in cases dealing with claims of
discriminatory impact and defamation of character.
 ◆ We must balance the need to be careful in providing
references with the need to CYA/protect the company by
doing thorough reference checks!
➢ Elements to Prove Discrimination:
■ 1. a written or oral defamatory statement
■ 2. a false statement of fact; to defend, the employer must prove the
statement was made in good faith, and believed to be true
■ 3. injury must have occurred to the referee, such as the inability to get
another job
■ 4. the employer does not have absolute or qualified privilege
● Under absolute privilege, an employer has immunity from
defamation, such as in a legal proceeding.
● Under qualified privilege, an employer will not be held liable
unless the information is knowingly false or malicious.
■ Just remember for your career and the exam, there are a LOT of legal
ramifications for reference givers. Don’t go beyond necessity when
describing people! Stick with the facts!

➢ Can Employers Give a Bad Reference for a Former Employee:

■ No Federal law that addresses what an employer can or can’t say about a
worker (state laws vary)
■ None of these statutes provide the employer with complete immunity
● Employers could still face a defamation (libel or slander) lawsuit
from a current/former employee in regards to information
provided in a reference.
■ Must take care in limiting type of info provided and making sure info
given to the correct person
■ Remember that laws do NOT provide employers with complete immunity
in giving references even when responding in good faith. (review points
below for Exam 3)
● Employers should LIMIT the type of information provided and
make sure that information is given to the correct person.
● And usually only 1 person, a trained HR Professional, should be
permitted to provide job references.
◆ The person needs to up on all applicable state laws
◆ They must provide info based on factual, documented
evidence (NO opinions!)
 ◆ And care should be taken to ensure that the exact same
process is used for each job reference request to avoid any
claims of discrimination
● Also, employers must be careful when completing background
checks on candidates with disabilities. Under ADA, employers
may make inquiries on previous job tasks and other job-related
issues NOT associated with candidate’s disabilities

➢ Reference Checks: Elements to Prove Negligent Hiring

■ Elements to prove Negligent Hiring:
● 1. injury to a third party caused by a person employed by the firm
● 2. Employee was unfit for the job (criminal background, violent,
untrustworthy, etc.)
● 3. Employer knew or should have known the applicant was unfit
(failed to check references?)
● 4. Injury received by 3rd party was foreseeable
● 5. Injury is a reasonable and probable outcome of what employer
did or did not do in hiring
■ Employment of a person who causes harm that could have been
prevented by a background check may result in negligent hiring.
■ Suits involving negligent hiring typically encompass the following types of
issues:
● Those in which there was intentional employee misconduct, such
as a theft committed by an employee with a history of dishonesty
● Those in which physical harm occurred such as a physical attack or
sexual assault by an employee with a violent past or previously
exhibited sexually deviant behaviors
● Those in which an employee does not possess the skill or ability to
perform a job task and an individual is injured as a result
■ Remember that Negligent Hiring Liability HOLDS employers responsible
BOTH for what they do know and what they should have KNOWN about
their employees.
■ With a successful negligent hiring claim, the investigation proves the
employer could have discovered the relevant information and prevented
the incident from occurring.
■ Therefore, we must do our due diligence in screening employees –
otherwise, we run the risk of DAMAGED Reputation, Damaged Morale,
and multiple Financial Impacts
➢ Sources of Reference Data:
■ Former Employers – an important source for verifying past employment
and evaluating the applicant’s work performance; data from personnel
office; information from previous supervisors particularly valuable

■ Personal References – most applicants chose those they believe will give a
positive reference; important to ask how long and in what capacity
reference knows applicant

■ Investigative Agencies –will conduct background checks; focus on resume

and application information; education; credit ratings, police & driving
records, personal reputation, lifestyle, more; expensive;
● Consumer reports – report credit standing, character, general
reputation
● Investigative consumer reports – based on personal interviews
with applicant’s friends, neighbors, acquaintances
■ One thing to note (for the Exam) when doing background checks, the Fair
Credit Reporting Act tells us that inquiries about a candidate’s financial
status and credit rating should be obtained ONLY where there is a
legitimate business necessity for the information. (for example, they will
have financial authority or access to financial information)

■ Public Records – use caution to ensure non-discrimination, and justified

by nature of job
● 1. Criminal records – first, likely to discriminate? Business
necessity? Often required for jobs with high degree of public
contact, limited supervision, working at private residences or
businesses, involving personal care of others, or with access to
others’ belongings
● 2. Motor vehicle department records – only when driving is an
essential function of the job

■ Workers’ Compensation Records – show the type and number of claims

for job injuries; ADA prohibits an employer from asking about workers’
comp claims during selection, but job offer can be contingent on
candidate passing a medical exam, which can include information re
workers’ compensation history
● May be another source because you may want to know if this
person has any prior injuries they aren’t reporting.
 ● Also there are a lot of fraudulent WC claims and you don’t want to
be bringing someone who has a history of filing fraudulent claims
as it will cost your company!
● Usually, the best thing to do is extend a job offer contingent upon
the candidate passing a medical examination

■ Educational Records – always verify degrees, etc. especially if

entry/college level position; may need an authorization signed by the
applicant authorizing the release of educational records

❖ Social Media Screening:

➢ Many employers using Facebook, LinkedIn, Twitter to conduct their own informal
“reference checks”
■ This information used to screen out a candidate as often as to hire the
candidate
■ Employer should be sure that the information solicited does not
discriminate against a protected group, and that it can be justified by the
nature of the job for which applicant screening is being undertaken
➢ You should keep your eye firmly on what is job-related and what is not!
➢ Employers should exercise caution when using online sources for reference
checks. While they may find valuable information about prospective employees,
if they use (or appear to use) certain information, such as age, race, marital
status, or other defining features of potentially protected classes, to screen job
candidates, it could serve as grounds for a discrimination suit.
➢ The amount of background and reference checking for an employer to shield
itself from a claim of negligent hiring should be based on a written workplace
policy that applies a standard procedure across the board, but also should be
sufficiently flexible to vary from situation to situation, as needed.