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Question on EMployment Application? California

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  • Question on EMployment Application? California

    Located in California

    I know that an employer cannot directly ask a prespective employee if they have ever filed a workers comp or disability claim on the emoployment application. Is there a question that can be legally asked to determine if the employee has missed a large amount of time due to illness or injury? If so, what is the exact wording that I can use.

    Thank you in advance for your input.

  • #2
    "If I were to ask your previous employers some general questions about your attendance, what do you think they would say?"
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

    Comment


    • #3
      Originally posted by cbg View Post
      "If I were to ask your previous employers some general questions about your attendance, what do you think they would say?"
      Sorry, but I do not understand how that relates to my question.

      Comment


      • #4
        You are not asking about disability or workers comp claims. You are giving the applicant the opportunity to tell you about any large gaps in their attendance. You're not going to get answers specific to illness (they may have taken a three month leave of absence because of a family emergency not covered under FMLA) but you'll have a place to start without violating any laws.
        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

        Comment


        • #5
          Thanks cbg for clarifying. Your second response makes sense. I guess what I am trying to get at is how do I ask a prospective employee if they have filed a previous workers comp claim. Since the original post, I talked to our payroll company subsiderary who does background checks. They can do a WC search on each new employee as part of the hiring background check. I would still llike to ask the question though.

          We have had a rash (4) new employees come to work and filed a WC claim within a month, one within 3 days. All but 1 has filed a previous WC claim for essential the same injury and happened in essentially the same way. Only 1 (not the 3 dayer) is not questionable as there was a witness. The 1 is also the only 1 of the 4 who has not filed a previous claim.
          Last edited by aswas71788; 08-21-2008, 03:37 PM.

          Comment


          • #6
            You can't. It's that simple. Asking about workers comp claims is verboten.
            The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

            Comment


            • #7
              Originally posted by aswas71788 View Post
              Thanks cbg for clarifying. Your second response makes sense. I guess what I am trying to get at is how do I ask a prospective employee if they have filed a previous workers comp claim. Since the original post, I talked to our payroll company subsiderary who does background checks. They can do a WC search on each new employee as part of the hiring background check. I would still llike to ask the question though.

              We have had a rash (4) new employees come to work and filed a WC claim within a month, one within 3 days. All but 1 has filed a previous WC claim for essential the same injury and happened in essentially the same way. Only 1 (not the 3 dayer) is not questionable as there was a witness. The 1 is also the only 1 of the 4 who has not filed a previous claim.
              I understand your problem, but you should not discriminate based upon previous claims. This is not an easy thing to handle. Not everyone that files a claim is doing so frauduently. Maybe they just needed more traininig for the job or to be pulled from it if they don't grasp the basics of safety.
              Senior Professional in Human Resources and Certified Staffing Professional with over 30 years experience. Any advice provided is based upon experience and education, but does not constitute legal advice.

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              • #8
                Thanks. Per the background company, we can do a background check for WC claims as long as the prespective empoyee signs the appropriate documents. Guess I will have to be satisfied with that and make sure that all employment is pending completion of the background check.

                Comment


                • #9
                  Originally posted by aswas71788 View Post
                  Thanks. Per the background company, we can do a background check for WC claims as long as the prespective empoyee signs the appropriate documents. Guess I will have to be satisfied with that and make sure that all employment is pending completion of the background check.
                  Yes, you can do the check, but if you don't hire because of the results, you better have a good lawyer. Don't use the results for hiring decisions. You might be able to use them to decide to give the employee extra safety training, at company expense, of course.
                  Senior Professional in Human Resources and Certified Staffing Professional with over 30 years experience. Any advice provided is based upon experience and education, but does not constitute legal advice.

                  Comment


                  • #10
                    Agree with Scott. You can, of course, do a background check but if you pick up that the applicant had a WC claim, you don't want to deny employment based on that information.
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