Q. Are we required to use an application for prospective applicants and if so, what information must we include? What information should we leave off our application?
A. California law doesn’t require employers to use employment applications. However, employers that choose to must follow certain restrictions.
Requests for applicants to disclose their race, sex and national origin must be voluntary. This information must be kept separately from personnel files. (Cal.Code of Regs. §§ 7287.0(b) and 7287.0(c)(3)) Employers may not require an application fee. (Labor Code section 450)
Employers must provide the employee with a copy of the application if signed by the employee. (Labor Code section 432)
In addition to these, there are limitations on criminal background inquiries. In general, employers should refrain from inquiries seeking information on:
- Arrests or detentions that did not result in convictions. (Labor Code section 432.7; 2 Cal.Code of Regs § 7287.4(d)(1)(A))
- Convictions for certain misdemeanor marijuana-related offenses if the convictions are more than two years old. (Labor Code section 432.8) Employers may inquire about misdemeanor and felony convictions; and any criminal charges and arrests for which the applicant is out on bail or his or her own recognizance. (Labor Code sections 432.7 and 432.8)
Health care employers may ask about arrests for sex offenses (if the position will have regular access to patients). If the position has access to drugs or controlled substances, the employer may ask for any arrests concerning controlled substance violations. (Labor Code sections 432.7(f)(1) and (f)(2))