Top Ten Tips Disclaimer
No law requires employers to accept resumes or applications if there are no openings, but an employer should either keep all unsolicited applications, or throw them all away - "cherry-picking" can easily lead to disparate treatment claims with the EEOC or a state human rights agency.
Job applications should solicit only job-related information.
If a potential question for the application will not help determine who is the best-qualified applicant, do not ask it.
Be sure to ask about hours and days of availability for work; let applicants know that if they indicate availability times that do not match the job posting or the job description, they may not be further considered for the position in question.
It is permissible to ask about: identifying information, including contact information; prior work-related experience; prior employers, dates of employment, and rates of pay; whether the applicant is at least 18 (if the concern is to avoid child labor problems), or a minimum age such as 21 (if the concern is to determine insurability as a driver of company vehicles or operator of certain equipment); work-related certificates and licenses, including dates of issuance; work-related education and training, including dates; job reference information; job-related criminal history; and availability or restrictions as to type of work, work schedules, and work locations.
It is permissible to ask for an applicant's birth date, SSN, and driver's license number in order to facilitate a job-related background check. However, a company should consider obtaining such information as late in the application process as possible, in order to minimize the amount of confidential information it obtains, and the risk is that it might be compromised in some way.
Unless there is a bona-fide occupational qualification or statutory or regulatory requirement involved, do not ask about an applicant's race, color, religion, gender, age, national origin or citizenship, disability, or genetic information.
Examples of permissible questions:
Are you at least 18?
Do you have a current, valid driver's license? (for driving-related positions)
Have you ever been involuntarily terminated from a position of employment? If so, please explain. (This question does not apply to a layoff or reduction in force for economic reasons.)
During the past _____ years, have you been convicted of, or have you pleaded guilty or no contest to, a felony offense? If yes, please explain. (See "References and Background Checks", item 8, for a discussion of the importance of a job-relatedness determination when using criminal history as a criterion for hiring.)
Examples of impermissible questions:
Do you have children? (This would be permissible if the job duties directly require the employee to be a parent.)
Are you a U.S. citizen? (Ask a different question, such as "Are you authorized to work in the United States?")
Are you a ______________ (member of a specific type of religion)? (This is permitted only if the job is with that specific type of church, and the duties relate to carrying out the mission of that particular church or faith.)
Are you married?
What are your family plans?
Do you have any handicaps or disabilities?
Do you own a car?
Do you own a house?
Have you ever been arrested?
At the end of the application, let applicants know that by signing and submitting the application, they give their consent for various things:
the employer may verify any information given on the form;
any wrong or incomplete information can result in the applicant not being hired or, if the problem comes to light after hire, it can result in immediate dismissal from employment;
the applicant agrees to submit to any job-related medical exams or drug tests that might be required; and
the applicant understands and agrees that if hired, employment will be at will.
An example of such a statement might be something like this: "I certify that I have fully and accurately answered all questions and have given all information requested in this application for employment, and I understand that any wrong or incomplete information on the form may disqualify me for further consideration for employment or, if discovered after I am hired, may be grounds for my immediate dismissal. I understand that all such information is subject to verification by the Company, and hereby give my consent to the Company to investigate my background and qualifications using any means, sources, and outside investigators at its disposal. I agree to undergo any type of drug and/or alcohol testing that the Company may require at any time. Finally, I understand that submission of this application does not necessarily mean that I will be hired, and that if I am hired, my employment will be at will, and either I or the Company may terminate my employment at any time, with or without notice or reason."
The EEOC requires employers to keep solicited job applications for at least one year - it is best to keep them at least 4 years, in order to exhaust all possible statutes of limitations for various employment law causes of action, and the application for the successful candidate for at least 7 years; if EEOC investigates and finds that applications have not been kept, that is not only a recordkeeping violation, but also potential evidence of intent to discriminate.
The State of Texas has an official employment application form (PDF) that illustrates the kinds of things that a job application should include.
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