ComplianceLegalDecember 12, 2020

Using job applications in the hiring process

A popular and efficient method to collect information about applicants for employment positions is to use job applications. You can use a standard form or customize one, but you must be sure that the information you request (or the way you request it) doesn't violate anti-discrimination laws.

Gathering information from job applicants is a crucial part of the hiring process. Depending on the type of position you are trying to fill, you may choose to use job applications in their standardized form or customized to obtain the information you need to make your hiring decision.

Job applications can also be used in combination with resumes as an efficient way to get the all the information you need from applicants.

Chances are good that you'll need to customize the application form to some extent in order to gather the pertinent information for the job you're trying to fill. When creating a customized application for your business hiring needs, you should take the following into account:

  • what you should ask on job applications to help you make the best choice
  • things that you can't ask under federal and state laws
  • information and statements to include in your applications

What to ask on job applications

Applications can be as simple or as detailed as you want to make them. You can design them any way that you want. Remember that you're going to have to read them all, so make sure you don't ask for information that you don't need.

Also, if your business is subject to federal or state anti-discrimination laws, it's even more important to be sure that you ask only for what is required by business necessity. If a question is on an application form, it will be assumed that it is there because you want to know the answer in order to make an employment decision.


To be certain you don't run afoul of any federal or state rules, we recommend that you run your customized application past your attorney before you start using it.

The following is a list of specific information that you can ask for and, when phrasing is important, how to ask for it.

  • Name. Ask for last, first, middle. Last name first makes recordkeeping easier.


If you are going to ask if the applicant has ever been known by any other name, make the inquiry in the work experience section so that the applicant understands that you are requesting the information in order to perform accurate reference and record checks.

  • Address. Ask for present and former addresses, plus how long the applicant has resided at each.
  • Social Security number.
  • Age. Ask for age only if it is necessary to comply with minimum age and child labor requirements under state laws. A permissible question is, "Are you over 18 years of age?" Otherwise, ask for the applicant's age only if you are certain there is a legally recognized business justification for it.
  • Children. It's permissible, but not recommended, to ask "Have you made arrangements to care for any children?" since that can be justified on grounds of availability and reliability.


Be aware that if you ask about child care, you must question men as well as women and treat the answers the same. Also, if you pursue this potentially dangerous line of questioning, do so in the interview rather than on the employment application.

  • Gender and race. There are few bona fide occupational qualifications which are legally relevant to employment based on gender. So far, there are no recognized ones based on race. Ask only if you are required to do so for affirmative action obligations. This inquiry can be put on the bottom of the application under a perforated line or it can be on a sheet of its own.
  • Disabilities. If you are subject to the Americans with Disabilities Act (ADA), which is generally applicable to employers of 15 or more employees, although you may not ask an applicant about medical conditions before you have made a conditional job offer according to the law, you may determine whether an applicant is fit for duty and whether the applicant is a threat to himself or others.
  • Military service. Ask for dates of military service, branch of service, experience, and skills gained, but not type of discharge.


It's better to rephrase your questions regarding military service as inquiries as to job-related military experience, training, or supervision.

  • Criminal records. Generally, inquiries regarding criminal records will have to be justified as job-related and a business necessity.


You may want to try asking "Have you ever committed the crimes of theft, fraud, embezzlement, larceny, or other related crimes?" If the answer is yes, you could follow up in the interview, or you could provide another form asking more detailed questions if the applicant was actually convicted of a crime.

If the job vacancy requires significant customer contact or contact with the public, requires carrying a weapon, or gives access to significant amounts of money or valuables, you have a right and a responsibility to ask more detailed questions about the applicant's criminal record. The Equal Employment Opportunity Commission (EEOC) has suggested that you include the following statement near the inquiry:

"Conviction of a crime will not necessarily be a bar to employment. Factors such as age at the time of the offense, type of offense, remoteness of the offense in time, and rehabilitation will be taken into account in determining effect on suitability for employment."

  • Education. Ask for names, addresses and degrees for schools attended. If you ask for dates, mention that the purpose is to facilitate reference-checking. Otherwise, it might be construed as an indirect means of asking for an applicant's age.

    You may also ask about apprenticeships, training programs and other special educational experiences. This information can be valuable because it can tell you more about an applicant's skills than traditional academic information can.
  • Work experience. This is usually the most valuable information, and you should definitely ask about it. Inquire about the present employer and the applicant's reason for wanting a new job. Can the present employer be contacted? What is the applicant's present job and pay rate?

    Also ask about past employers, including names and addresses. Ask the applicant to describe jobs and pay rates as well as to provide the names of supervisors and reasons for leaving. With this information you can get a much clearer picture of the applicant's experience and which type of environment the person is used to working in.


Sometimes this type of information can be helpful in spotting a pattern of problems. For example, if the applicant has worked many places in a short time this may be a sign of a "job jumper" or perhaps someone who isn't a model employee and was asked to voluntarily "resign." Don't make a decision based on this type of information, but it can be helpful in formulating an overall picture.

  • Personal references: friends, business contacts, etc. Ask for names and current addresses, but ask only if you intend to check them. How did the applicant hear of the job opening? Ad? Friends? Walk-ins? Use this to track your best recruiting methods.
  • Availability. Can the applicant work the night shift, overtime, transfers, holidays? Leave a space for applicants to explain why they would not be available. Applicants who indicate need for Saturdays, Sundays, or holidays off for religious reasons may not be discriminated against on that basis unless the company can demonstrate undue hardship. Undue hardship is a significant difficulty or expense.

Tools to use

The Business Tools include a sample application form that you can use as a guide. You can customize this document to suit your needs by adding or subtracting parts of it, but be careful not to ask anything that does not relate to a business necessity. Run the customized version by your attorney to be certain it's legally in order.

What not to ask on job applications

For everything you can ask someone on an application, there's at least one that you can't ask. Many of these prohibitions are in place are to protect applicants from discrimination. And, realistically, some of them are none of the employer's business.

Here are some danger areas to avoid:

  • Marital status. Don't have applicants "circle one: Mr. Mrs. Ms. or Miss." or in any way divulge their marital status. This merely raises discrimination issues.
  • Maiden name. Asking this can bring up questions of marital status, gender, or even national origin discrimination.
  • Gender. Don't ask unless sex is a legally recognized bona fide occupational qualification for the particular job.
  • Age. Generally, ask only whether the applicant is 18 years of age or older. Ask for the applicant's age only if you are certain that there is a legally recognized business justification for it.
  • Birthplace. Generally, don't ask because of the possibility of national origin or immigration issues.
  • Residence. "Do you rent? own? board?" Once a common question, it supposedly was a measure of stability. It may discriminate against minorities and others who tend to rent rather than own, and it's likely to be regarded as "none of your business" by many applicants.
  • Relationship of person to be notified in an emergency. Don't require that the person be a relative. Better yet, don't ask the question at all until the applicant becomes an employee.
  • Arrest and/or conviction records. Generally, don't ask about arrest records on a job application. You may ask about conviction records in order to protect yourself from negligent hiring claims so long as you place a statement nearby to the effect that a conviction in and of itself would not prevent hiring. Another possibility is to not ask about criminal convictions, but state that you intend to make a criminal records check (assuming you do).
  • Type of discharge from military service. Some states make it unlawful to discriminate on this basis.
  • Disability, health. Don't ask medical questions. Don't refer to medical or physical examinations until a conditional offer of employment has been made.
  • Workers' compensation history. Regulations under the Americans with Disabilities Act (ADA), applicable to employers with 15 employees or more, prohibit this type of questioning. Information that is necessary to collect under a state workers' compensation program for second injury funds can be gathered after an offer of employment has been made.
  • Citizenship. Discrimination based on citizenship is unlawful under the Immigration Reform and Control Act of 1986. Don't ask "Are you a U.S. citizen," "Do you have a work visa?" or "Do you have a legal right to remain permanently in the U.S.?"

Information to include in your application

Certain information should be included on or with a job application to let applicants know about your business, what you expect from them, and to protect you from potential legal liability:

  • Release of information form. To protect yourself and to inform the applicant of exactly what your reference checking plans are, ask the applicant to sign an information release form that gives you permission to check references.

    Keep the original with the applicant's file and make copies to distribute with written letters and to provide to people who request it.

Tools to use

You can use the sample applicant information release form contained in the Business Tools for your reference checks.

  • Employment-at-will statement. Application forms frequently include the assertion that the applicant, if hired, will be subject to employment-at-will.

    Employment-at-will means that the employee may leave at any time and that the employer may terminate the employee at any time, whether for cause or not. Employment-at-will statements are designed to make sure that you're not creating or implying that an employment contract will be created, should you hire the applicant.

    You can include a disclaimer on application forms telling applicants that the application (or other written documents) does not create an employment contract.


"I understand that, if hired, my employment would be "at-will" and could be terminated at any time by either party, with or without cause and with or without notice."

  • False information statement. You may have a policy of terminating an employee if it is discovered that the employee made false statements on his or her resume or job application. A statement to that effect in the job application gives prospective employees notice that submission of false statements will not be tolerated and gives them incentive to fill out the form correctly.


"I certify that the statements I have made are true and correct to the best of my knowledge. I understand that the submission of any false information or the omission of any requested information in connection with my application for employment, whether on this document or not, may be cause for failure to hire or for immediate discharge should I be employed by XYZ Company, Inc."

  • Work authorization statement. Although you cannot discriminate on the basis of citizenship, proof of identity and work authorization are required of all employees by the Immigration Reform and Control Act.

Work smart

To bolster documentation of your compliance efforts — and to make sure that applicants understand what is required of them — include the following statement:

"Applicants are required to furnish proof of identity and legal work authorization prior to hire."

  • Active application period. In companies that get a lot of applications, the applications are kept in an "active" file for only a limited period of time. You may want to include that information on the employment application in order to prevent any misunderstanding of the hiring process by the applicants. You may also invite them to reapply after the period is over.

Think ahead

If you think you may want to invite applicants to reapply after the active application period is over, include a statement similar to the following on your application:

"I acknowledge the fact that this application of employment will be active for 60 days; after this time period, I must reapply for further consideration."

  • Keeping applications. For employers of 15 or more, even though a job application is removed from the active file, the Equal Employment Opportunity Commission (EEOC) requires that you keep hiring information on unsuccessful applicants for a year. It's a good practice to keep the applications of unsuccessful applicants for longer than a year, in case legal issues arise or of course, if state laws require that you do so. Keep in mind that if the applicant is hired the job application becomes part of his or her personnel file.
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