California and Federal Law protect certain personal information of prospective employees for disclosure and make it illegal for employers to even ask for the information. Here are just a few prohibited questions:
“How Old Are You?”
Employers have the legal right to make sure a prospective employee is old enough to work for them, but other than that, cannot directly ask for the prospective employee’s age or indirectly ask questions that reveal the employment applicants’ age, such as “how long have you been working?” or “when did you graduate high school?”
“Have You Ever Been Arrested?”
Employers are allowed to ask if an applicant has ever been convicted of a crime. However, employers cannot ask the applicant if he or she has ever been arrested in general.
“How Is Your Health?”
It is illegal for employers to ask prospective employees if they are in good health, how tall they are, how much they weigh, if they have had any past illness or operations, or how many sick days they took at their last job. However, employers can ask about specific physical abilities related to tasks the applicant would be required to perform.
It’s also illegal for employers to directly ask if an applicant has any disabilities as such a question is prohibited by the Americans with Disabilities Act (ADA). An employer may ask if an applicant can perform the basic functions of the position without accommodation.
“Are You Married?”
Anything that fishes for information about a candidate’s family plans (marriage, engagement, and child planning) is technically illegal because it falls under pregnancy discrimination.
“What Is Your Religion?”
The religion an applicant practices, the holidays they observe, and anything related to those things, is personal information applicants never have to disclose.
“What Is Your Nationality?”
An employer can check whether an applicant can legally work for them, but cannot ask questions regarding the applicant’s race or place of birth, whether they are a U.S. citizen, or whether English is their native language. Employers, however, can ask what languages the prospective employee reads, speaks, or writes fluently.
“Do You Like to Drink Socially?”
The FDA categorizes alcoholism as a disability. Therefore, employers should not ask about alcohol, or even tobacco use, by a prospective employee.
“Have You Ever Used Drugs In the Past?”
An employer cannot ask about a candidate’s past use of illegal or prescription drugs. However, employers can ask whether the candidate is currently using any illegal drugs, but, why ask? It is better to establish a drug-free workplace that requires random drug testing and a mandatory drug test before the candidate is hired. Then, an employer will not run afoul of the law and will not have to rely on a self-serving statement of the candidate to determine whether the candidate is presently using illegal substances.
As always, it is recommended that you check with your Labor attorney before asking any questions of a future employee that may be a violation of his/her right to privacy.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
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