With holiday hiring in full swing, it’s a good time to review what should and should not be asked on employment applications.
What Not to Ask
Any questions designed to elicit information about an employee’s protected characteristics or status should be avoided. Exceptions exist for bona fide occupational qualifications. A BFOQ is a work requirement reasonably necessary to the operation of the business or the performance of a job. Examples include a requirement that the individual be over age 21 for a bartender position, requirements for a certain age, gender, race or ethnicity for acting roles, or having the ability to lift a certain amount of weight.
Unless there is a BFOQ in play, an application should not ask questions which would elicit information about the following:
- Sexual orientation
- Gender identity or expression
- Ancestry, national origin, birthplace, or citizenship (can require proof to work in United States after hire)
- Marital status, maiden name, whether any relatives are employed by the employer
- Pregnancy status, intent to have children or whether applicant has children
- Age, dates of attendance at educational institutions and graduation dates
- Religion or days of religious observance
- Medical conditions
- Genetic history or characteristics
- Any prior worker’s compensation claims
- Arrest records
- Military or veteran status (however, applicants should be notified they permitted to disclose information about military service voluntarily in the job experience portion of the application and to disclose skills or knowledge acquired during military service)
- Memberships or participation in organizations or clubs that might disclose a protected status (however, applicants should be provided the opportunity to disclose such memberships or participation if relevant to the job or their experience)
- Name, contact information, and relationship of a relative to be notified in case of an accident or emergency ask for the name and contact information of a person to be contacted)
- Educational background if not a requirement for the job
Because of the advent of identity theft, an application should not ask for the applicant’s social security number or driver’s license number (obtain when necessary after hire or in connection with background check after conditional offer has been made).
Inquiries about Criminal Convictions
Employers cannot ask about criminal convictions that involved a juvenile proceeding, a conviction that has been sealed or expunged or otherwise statutorily eradicated, a conviction which resulted in a referral to or participation in a pre-trial or post-trial diversion program, or convictions for marijuana offenses if the conviction occurred more than two years prior to the date of the application.The application should also state that a conviction does not necessarily bar employment and that other factors such as time/seriousness of offense, age, and rehabilitation will also be considered. The application should provide a space for the applicant to describe the nature of the crime and any rehabilitation efforts.
What to Ask
Employers will want to make sure applicants have the opportunity to disclose participation in activities that may be relevant to their skills, experience and knowledge without requiring disclosure of any protected status. Here is one way to do this.
Do you have any other knowledge, experience, abilities, special skills or credentials which you feel add to your qualifications for the position(s) you are applying for? You may exclude information or affiliations which might indicate race, color, religion, ancestry, sex, sexual orientation, gender identity or expression, national origin, age, disability, military service or veteran’s status, marital status, genetic information, or any other protected classification.
Applicants should also have the opportunity to disclose their experience as a volunteer or in military service. Here is one way to ask this question safely:
You may include as part of your employment history any verified work performed on a volunteer basis, in an internship, or in military service.
Other Recommended Disclosures and Statements
- Employer is an equal employment opportunity employer and provides reasonable accommodations to applications during the hiring process as long as the accommodation does not constitute an undue hardship. State who to contact to request accommodations.
- Whether the applicant will be subject to drug testing if a conditional offer is made
- At-will nature of employment
- Applicant authorization to contact references (if employer will check references using its employees, special language is required)
- Whether a background check will be required after a conditional offer is made (make sure to have the applicant sign a stand-alone authorization which complies with California and federal law
This article provides a general overview of the most common issues that arise with respect to employment applications. To ensure your application complies with applicable law, we recommend a consultation with legal counsel.