• Employers must be careful when considering what to ask on an application.

Employment applications are an excellent way to collect information about applicants in a standardized format, generally making it easier to quickly identify which candidates meet the minimum qualifications for the position. Unfortunately, due to the volume of state and local employment laws, a generic job application can also be a minefield for information that should not be considered during the hiring process. Almost all states have restrictions on what can be asked in an application, and employers should be familiar with and comply with the laws of each state in which the application will be used.

If employers haven’t updated their job applications in a while, they should give them a thorough review and consider the following:

• Citizenship status: Questions about a person’s citizenship might suggest discrimination based on national origin. Therefore, employers should not ask whether an applicant is a U.S. citizen, but rather if the person is legally authorized to work in the U.S.
• Age: Questions that request a person’s age, date of birth (DOB), or date of high school graduation should be avoided. However, asking whether a person is at least 18 years old or has the necessary work permit is acceptable.
• Criminal record: In multiple states, as well as individual counties and municipalities in states without a statewide law, ban-the-box legislation limits when employers may ask about criminal records, often prohibiting inquiries about convictions until the initial interview or job offer. This means the application may not ask, “Have you ever been convicted of a crime?” or any variation thereof.
• Social Security Number (SSN): While federal law does not prohibit employers from asking for a SSN on employment applications, it is best avoided due to privacy concerns, such as identity theft. Because such information is generally necessary for a proper background check, it is best to limit a SSN or DOB to the background check authorization form, and then limit who has access.
  • Some states have laws with specific requirements for protecting individuals’ personal information, so employers should ensure their recordkeeping practices are compliant.
• FCRA disclosure: Under the Fair Credit Reporting Act (FCRA), before employers can obtain a background check report from a third-party vendor, they must provide applicants with a disclosure stating that their company may obtain such a report for employment purposes, and applicants must authorize the check.
  • The FCRA disclosure and authorization, however, must remain separate from an application. The Federal Trade Commission has warned that the form should not include any extraneous information.
    • For example, the authorization should not include a waiver that releases the employer from liability for any inaccuracies in the report.
• Salary history: “What is your current salary?” was once a common job application question, but an increased interest in pay equity has inspired many states and cities to pass salary history bans that prohibit asking this question on an application or in a job interview. Such legislation also prohibits employers from using salary history to determine an individual’s compensation or benefits package.
  • Some jurisdictions prohibit any employer from asking about salary, while in others, the ban only extends to state agencies and departments.
    • The wording of such laws varies as well, with some states prohibiting employers from asking while others simply prohibit employers from refusing to hire, interview, promote, or employ applicants based on their decision not to provide salary history.
    • In some states with salary history bans, employers are allowed to seek salary history information after making a conditional offer of employment with a specified salary.
  • At least one state has contradictory laws, both banning:
    • State agencies from asking about salary, and
    • Local governments from banning asking about salary.
      • Employers should check all relevant state and local laws before deciding whether to ask candidates about their current or previous salary, and when in doubt, should avoid asking.