Job applications: What can you ask? How long should you retain them?

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in Discrimination and Harassment,Employment Law,Hiring,Human Resources

No federal or state law requires employers to use job applications. But if you do require applicants to fill them out, know the legal do’s and don’ts of what questions to ask.

For example, don’t ask for information that would reveal protected-class status, such as age, race or religion. Nor should you ask a woman her maiden name or have a check-off box on your application with the choices “Mrs.” or “Miss,” which would reveal an applicant’s marital status. Stick with “Ms.”

Graduation dates
With respect to age, avoid asking applicants when they graduated from high school or college. If you did, someone might say “1945” and you would know that person is over age 40. But are you violating the Age Discrimination in Employment Act by asking for those dates? The EEOC has issued some guidance hinting that you would be breaking the law, although the courts probably wouldn’t uphold that extreme view. As a rule, ask for graduation dates only if you have a legitimate, job-related reason.

The job descriptions and sample want ads in the Job Descriptions & Interview Questions Sourcebook not only make it simple to find great candidates. They help you comply with federal law.

Plus, you’ll have a record of your good-faith efforts to evaluate each job – important if the feds or an employee ever question your decisions.

...and this power-packed CD even provides Word docs you can easily customize to suit your needs. Learn More about the Sourcebook.

Arrests, convictions
The extent to which you can ask about someone’s criminal history depends on your state law. Most states say a conviction shouldn’t automatically bar employment. Also, most state laws strictly prohibit employers from considering arrests that didn’t result in convictions.

Disabilities
On job applications it’s illegal to ask questions related to disabilities or whether someone ever filed a workers’ compensation claim. Under the ADA, you’re prohibited from asking any disability-related questions during the pre-employment phase. (Once you’ve made a conditional job offer, you may ask for medical information if it’s job related.)

Military service
A dishonorable discharge shouldn’t automatically bar employment, according to federal law and some state statutes. And you probably should state that point right on your employment application. Of course, you can ask an applicant about the circumstances surrounding a dishonorable discharge.

English fluency
You may ask if a person is fluent in English but only for a job-related reason: i.e., the job requires fluency beyond understanding a few words for safety concerns. Be careful here: This is a hot issue now, and we’ve seen a lot of cases challenging fluency-in-English policies. Be aware of the trend even if you haven’t raised that question on your own job application.

Unions
You can’t ask applicants whether they’ve ever been members of a union. You can, however, state on your application or during the hiring process that your organization has a policy against unions.

Travel issues
Be careful asking applicants whether they own a motor vehicle. The only time it’s appropriate: when performing the job they’re applying for would require them to provide their own transportation. In all other cases, you could be accused of distinguishing applicants on the basis of owning a vehicle and thus on their economic class, which may be tied to race. That’s illegal.

How long should you retain applications from those you don’t hire?

Federal statutory requirement: One or two years, depending on your organization’s size and whether any affirmative action statutes or executive orders apply to you.

Recommended retention period: Three years, regardless of the size of your organization or your affirmative action obligations. You want to create a track record showing how many applied for jobs, their qualifications and experience.

How long should you keep applications of candidates you’ve hired?

Federal statutory requirement: One year.

Recommended retention period: Entire term of employment, plus three years.

For each of 200+ job titles, the Job Descriptions & Interview Questions Sourcebook gives you:
  • Model job advertisements and job descriptions to make it easier for you to be precise in your advertisements for employees so you can attract the candidates most suited to your needs – taking a lot of the work out of your work!
book cover
  • A handy checklist to help you determine exemption status for each of the 200+ jobs under the federal Fair Labor Standards Act. This is a simple way to prevent costly misclassifications, claims and overtime lawsuits.
  • A set of job-specific interview questions, plus a comparison chart for evaluating candidates for each job. As with the other documents, these documents are in Word, so you can easily edit or add questions as you please.
And there’s even more:
  • A library of more than 350 skill-based questions, from adaptability to integrity to sales skills. (Such as: “Give an example of a time you did more than was required in your job.”) Plus special questions for recent graduates.
Order the Sourcebook here!

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