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

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.

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.

Set a records-retention policy for job applications