HR QUESTION OF THE MONTH: ESTABLISH WORKPLACE SAFETY/WEAPONS POLICY?

QUESTION

If someone comes in asking for an employment application but we are not hiring for any positions, are we still required to give them an application?

ANSWER

While some employers do prefer to accept job applications even when there are no openings (to keep on file in the event openings become available later on), there is no statutory requirement to our knowledge that employers do so. In other words, we are not aware of any federal employment law that imposes an obligation upon private sector employers to provide and accept applications for employment when there are no job openings and the employer is not otherwise seeking to secure interest or applications from candidates. That said, the employer needs to be consistent in its approach. To this end, the employer should not agree to provide/accept job applications from some individuals even when there is no available employment opportunity, but refuse to provide/accept the same from others in a similar circumstance, at least for those seeking employment opportunity in the same positions/department/store locations, etc.

To be sure, while private employers have some discretion, they can face exposure to potential discrimination or retaliation claims (not to mention public relations issues) if they are not consistent in the practice of providing and accepting job applications, whether or not there are available employment opportunities. For the most part, this should be an “all or none” proposition for an employer, if not across the board then at least as to specific positions, departments, locations, etc. Either the employer will provide and accept applications for employment (again, throughout the organization or as to particular jobs, departments, locations, etc.) when there are no job openings, or not, but it is a best practice not to do both, at least not as to similarly situated positions or groups if this is not a company-wide approach. Keep in mind that whatever the employer’s approach, there are record-retention requirements as to job applications whether or not an applicant is considered for employment or hired (we recommend two years). As well, if applications are accepted even when no openings exist, the employer may bear additional obligations to consider such applications if/when employment opportunities arise in the future.