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Online Law Newsletter: Employment Law

PRE-EMPLOYMENT INQUIRY GUIDELINES
CALIFORNIA DEPARTMENT OF EMPLOYMENT AND FAIR HOUSING

This is a partial list of pre-employment questions and statements that the California Department of Employment and Fair Housing has deemed to be legally acceptable or unacceptable.

 

Name:  
Acceptable:

"Have you ever used another name?"

"Is any additional information relative to change of name, use of an assumed name, or nickname necessary to enable a check on your work and education record? If yes, please explain."

 
Unacceptable

"What was your maiden name?"

 
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Residence:  
Acceptable: Questions that indicate applicant's place of residence.
 
Unacceptable "Do you own or rent your home?"
 
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Age:  
Acceptable:

Statement that employment is subject to verification that applicant meets legal age requirements.

"If hired, can you show proof of age?"

"Are you over 18 years of age?"

"If under age 18, can you, after employment, submit a work permit?"

 
Unacceptable:

Questions about applicant's age.

Questions about birth date.

Questions about dates of applicant's attendance or completion of elementary or high school.

Questions that tend to identify applicant's age over age 40.

 
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Birthplace and Citizenship
Acceptable:

"Can you, after employment, submit verification of your legal right to work in the United States?"

Statement that such proof may be required after a decision is made to hire the job applicant.

 
Unacceptable:

Birthplace of job applicant or of job applicant's parents, spouse, or other relatives.

"Are you a U.S. citizen?"

Questions about the citizenship of applicant, applicant's parents, spouse, or other relatives.

Statement that applicant must produce naturalization, first papers, or alien card prior a decision to hire.

 
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National origin  
Acceptable: Questions about what languange applicant reads, speaks, or writes (only if use of a languange other than English is relevant to the job for which applicant is applying).
 
Unacceptable:

Questions about nationality, lineage, ancestry, national origin, descent, or parentage of applicant, applicant's parents, or applicant's spouse.

"What is your mother tongue?"

"What language do you commonly use?"

"How did you acquire your ability to read, write, or speak a foreign language?"

 
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Sex, marital status, family
Acceptable:

Name and address of parent or guardian if applicant is a minor.

Statement of company's policy on work assignment of employees who are related.

 
Unacceptable:

Questions that indicate applicant's sex.

Questions that indicate applicant's marital status.

Questions about the number or ages of applicant's children or dependents.

Questions about provisions for child care.

Questions about pregnancy, child bearing, or birth control.

Questions asking the name and address of any relative, spouse, or children of an adult applicant.

"With whom do you reside?"

"Do you live with your parents?"

 
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Race, Color  
 
Unacceptable:

Any questions about applicant's race.

Questions about applicant's complexion or color of skin, eyes, or hair.

 
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Physical Description, Photograph
Acceptable: Statement that photograph may be required after employment.
 
Unacceptable:

Questions about applicant's height and weight.

Requiring applicant to affix photograph to application.

Requesting applicant, at his or her option, to submit a photograph.

Requiring applicant to submit photograph after interview but before employment.

Videotaping interviews.

 
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Physical or Mental Disability
Acceptable:

Statement by Employer that the job offer may be contingent on applicant passing a job-related physical examination.

"Can you perform [a specific task]?"

 
Unacceptable:

Questions regarding applicant's general medical condition, state of health, or illnesses.

Questions regarding applicant's receipt of Workers' Compensation.

"Do you have any physical or mental disabilities or handicaps?"

 
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Religion
Acceptable: Statement by Employer of regular days, hours or shifts to be worked.
 
Unacceptable:

Questions regarding applicant's religion.

Questions regarding religious days observed by applicant. "Does your religion prevent you from working weekends or holidays?"

 
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Arrest or Criminal Record
Acceptable: Job-related questions about convictions except those convictions which have been sealed, expunged or statutorily eradicated.
 
Unacceptable:

Questions regarding applicant's arrest record.

"Have you ever been arrested?" (This is a violation of California Labor Code Section 432.7, which is enforced by the Labor Commissioner.)

 
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Military Service  
Acceptable: Questions regarding relevant skills acquired during applicant's U.S. military service.
 
Unacceptable:

General questions regarding military services such as dates and types of discharge.

Questions regarding service in foreign military.

 
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Organizations, Activities
Acceptable: Please list job-related organizations, clubs, professional societies or other associations to which you belong - you may omit those which indicate your race, religion, creed, color, disability, marital status, national origin, ancestry, sex or age.
 
Unacceptable: List all organizations, clubs, societies and lodges to which you belong.
 
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References  
Acceptable:

Who referred you for a position here?

Names of persons willing to provide professional and/or character references for applicant.

 
Unacceptable: Questions about applicant's former employers or acquaintances that elicit information on applicant's race, color, religion, national origin, ancestry, physical or mental disability, medical condition, sex, marital status, or age.
 
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Emergency  
Acceptable: Name and address of a person to be notified in case of an accident or emergency.
 
Unacceptable: Name, address and relationship of a relative to be notified in case of an accident or emergency.
 
 
NOTE: Any inquiry, even though neutral in its face, which has an adverse impact upon persons on a basis enumerated in the Fair Employment and Housing Act (race, sex, national origin, etc.) is permissible only if it is sufficiently related to an essential job function to warrant its use.

Please feel free to link to this article.

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