Don’t assume your company’s job application will cut it in the U.S.

We regularly alert our offshore clients to the pitfalls of assuming that what works and is acceptable in their home country will work in the U.S. with a little language and currency translation. As a general rule of thumb it doesn’t.

Here are four questions often found on standard job applications that are perfectly acceptable in their country of origin, but can land you in hot water – and even lead to fines and litigation – is presented to a prospective employee in the U.S.

Are you a U.S. citizen?
What medical conditions do you have that could interfere with the job you are being evaluated for?
Have you ever been arrested?
Do you smoke, drink and use drugs?

While the answers seem like something a prospective employer would want to know, they can neither be asked on a job application nor asked in a job interview (see below for questions like these which you can rightfully ask on a job application). The reason: the U.S. has strict anti-discriminatory laws that are enforced by the U.S. Equal Employment Opportunity Commission that cover 12 types of discrimination. Though they are complex to understand and follow, they afford protection to an employee or job applicant who feels aggrieved in some manner.

How does a company entering the United States and seeking to hire employee #1 avoid the pitfalls?

First, there are some guidelines available online:
HR World, Monster.com,Career Builder and MTU are good primers. Check them out.
Second, though you may not like the expense, consulting with a lawyer qualified in U.S. and relevant State employment law is always good insurance.

Here are some alternatives to the job application questions cited above that are considered acceptable (reasons in italics).

Are you legally able to work in the United States? You cannot discriminate on the basis of
national origin. An employee is required to provide evidence of employment eligibility (citizenship, visa, green card) on the first day of employment.
Are you able to perform all the essential functions of this job, with or without reasonable accommodations? An employer cannot discriminate on the basis of present – or past –
disabilities. Disability discrimination is covered by both the Americans with Disabilities Act (ADA) and the Rehabilitation Act.
Have you ever been convicted of a crime? Though not specifically covered by equal employment law, this is a slippery slope for other legal reasons, e.g. a candidate may have been arrested for participating in a demonstration, the nature of which may be protected under the Free Speech provision of the U.S. constitution. Generally, if a criminal conviction is revealed, the nature of the conviction must substantially relate to the duties of the prospective job, e.g. a job dealing with the handling of money and a conviction involving theft.
Do you currently use illegal drugs? Recovering alcoholics and drug users who have or may be receiving treatment are protected under the ADA. An applicant need not disclose any disability until they have received a job offer.

While the information provided is considered current it is not intended, nor should be construed, as a substitute for professional legal advice. Before taking action seek the opinion of a duly qualified legal professional to ensure you are in compliance with the law.

Written by Michael

Michael Douglas has held senior positions in sales, marketing and general management since 1980, and spent 20 years at Sun Microsystems, most recently as VP, Global Marketing. His experience includes start-ups, mid-market and enterprises. He's currently VP Enterprise Go-to-Market for NVIDIA.