You can’t require individuals to pay to apply for a job. This includes any form of payment to:

• Apply orally or in writing.
• Receive, obtain, complete or submit an employment application.
• Provide, accept or process an employment application.

Violating this law constitutes a misdemeanor.1

If you operate in multiple states, use caution when implementing provisions and disclaimers for applications. California has specific protections that might not be found in other states. Provisions and disclaimers can go unnoticed by candidates and, in some situations, create potential liability.

• Use an employment application specifically crafted for California compliance.

This topic contains the following information:

• Gathering Appropriate Information on Candidates
• Excluding Discriminatory Questions
• Salary History Ban
• Ban-the Box: No Criminal History Questions Before a Conditional Offer
• Excluding Questions Regarding Social Media Accounts
• Application Provisions That Protect You

Gathering Appropriate Information on Candidates

California law places restrictions on the types of information that can be gathered during the recruitment process, including restrictions on inquiring about prior salary and restrictions on obtaining criminal history information.

Under the California Consumer Privacy Act (CCPA) employers also have numerous obligations regarding the personal information collected from applicants and employees, including providing notice at or before the time of collection, the categories of personal information collected about an applicant or employee and the purposes for which the information will be used.

For more information, see California Privacy Rights Act.

Look carefully at any application you currently use and compare it with the Guide for Pre-Employment Inquiries and the sample applications contained on this website.

• Guide for Pre-Employment Inquiries

• The list of prohibited inquiries applies to all employment inquiries, whether on an application, in an interview or even during an informal lunch with a candidate.

You should refrain from asking for a Social Security number (SSN) on applications unless absolutely necessary for the job because of the potential for identity theft and California laws relating to use of SSNs. This information isn’t required until you reach the point of seeking the candidate’s background information or until you actually hire the individual. At either of those points, other forms can be used to obtain the SSN. For more information, see Keeping Social Security Numbers Private.

Also, California and federal law both prohibit employers from using E-Verify to check the employment authorization status of an applicant who hasn’t yet been offered employment. For more information, see E-Verify. Similarly, you may not ask an individual to complete the Form I-9 before that person has accepted a job offer; don’t include Forms I-9 with the employment application. For more information see Completing the Form I-9.

You must also familiarize yourself with background check and testing requirements, especially those relating to obtaining criminal history and credit history information. For more information, see Background Checks and Testing.

Employers using electronic applications and platforms should review recently updated FEHA regulations addressing the use of automated decision systems (ADS) and artificial intelligence in employment practices, including recruiting and hiring. Employers can't use an ADS in a way that discriminates against individuals based on FEHA-protected characteristics. For more information, see FEHA - California's Fair Employment and Housing Act.

Excluding Discriminatory Questions

Employers must ensure their applications don't contain discriminatory questions related to an applicant's age, gender, religious creed, disability or other protected characteristics. California’s discrimination laws are often more stringent than those in other states. Avoid using applications that are drafted and printed in another state (for example, where your organization is headquartered) unless you carefully review them for compliance with California laws.

The sample employment applications, Employment Application - Long Form, and Employment Application - Short Form, allow you to gather a great deal of pertinent information without creating liability for discrimination.

• Employment Application - Long Form
• Employment Application - Long Form (Spanish)
• Employment Application - Short Form
• Employment Application - Short Form (Spanish)

Employers can't ask for sex or gender information on employment applications or other forms or otherwise make inquiries that directly or indirectly identifies an individual on the basis of sex, gender, gender identity or gender expression.

You also can’t inquire about or require documentation or proof of an individual’s sex, gender, gender identity or gender expression as a condition of employment.2 For more information, see “Recording and Use of Gender and Name” in Gender, Sex, Gender Identity and Expression.

Employers who have affirmative action reporting or recordkeeping requirements, such as EEO-1 reports, can ask an applicant for sex/gender information but only on a voluntary basis. Use a separate form to collect that information. You can’t discriminate against an applicant because the applicant chooses not to self-identify. For more information, see Discrimination Reporting Requirements.

There are very limited situations where sex may be a “bona fide occupational qualification” that would allow you to require an employee be a particular gender for a job. If you think that a position in your company requires someone of a certain gender, you should consult with legal counsel. For more information, see Bona Fide Occupational Qualification as a Discrimination Defense.

When reviewing your application, also consider the impact of federal and state disability discrimination laws, which require reasonable accommodations for all people with disabilities. Many generic applications contain inquiries prohibited under these laws, such as “Do you have any health condition that may prevent you from performing the job for which you’re applying?”

Employers also can’t ask questions that screen out applicants based on their religious creed, age or medical condition. For example, FEHA regulations state that any scheduling inquiry, either in an interview or on a job application, must clearly communicate that the applicant doesn’t need to disclose any scheduling restrictions based on legally protected grounds; for instance, employers must say something like, “Other than time off for reasons related to your religion, a disability or a medical condition, are there any days or times when you are unavailable to work?”3

The regulations also address online applications, stating that applications that screen out applicants based on their schedule may have a disparate impact on applicants based on religious creed, disability or medical condition. Such a practice is unlawful unless job related and consistent with business necessity. An employer’s online application technology must include a mechanism for the applicant to request an accommodation.4

Regarding age discrimination, employers cannot ask an applicant when they graduated or their date of birth or use online applications that:

• Require applicants to enter their age in order to access or complete an application;
• Use drop-down menus that contain age-based cut-off dates; or
• Utilize automated section criteria or algorithms that effectively screen out applicants age 40 and older.

Salary History Questions Prohibited

Employers can’t ask applicants about their salary history. Employers can’t:

• Seek salary history information from an applicant, including information on compensation and benefits;
• Seek this salary history information through an agent, such as a third-party recruiter; or
• Rely on salary history information as a factor in determining whether to hire the applicant or how much to pay the applicant.

An employer may consider salary information voluntarily disclosed by the applicant without any prompting. Employers are allowed to ask applicants about their “salary expectation” for the position.

Employers must provide a job applicant with the pay scale for the position upon reasonable request.5 The law defines pay scale as the “salary or hourly wage range that the employer reasonably expects to pay for the position.”6 In addition to job applicants, employers must provide a current employee, upon reasonable request, with the pay scale for the position in which the employee is currently employed.7

• Review job applications to make sure they’re not asking the applicant questions about current or prior salary. Review other hiring forms, practices and policies to ensure that you’re not relying on salary history information. Train all managers and supervisors involved in the hiring process.

Employers must also maintain records of a job title and wage rate history for each employee for the duration of the employment plus three years after the end of the employment, which must open to inspection by the Labor Commissioner.

An individual that claims to be aggrieved by a violation of these salary history and pay scale disclosure requirements can file a claim with the Labor Commissioner or a civil action, which could result in penalties, injunctive relief or any other relief a court deems appropriate.8

Both California’s salary history ban and California’s Fair Pay Act state that, with the exception of current employees, prior salary can never justify a pay disparity. For more information, see Wage Equality - Fair Pay Act.

Compensation decisions based on a current employee’s existing salary, such as for giving raises or bonuses, may be permissible if justified by factors such as a seniority or merit system.

The salary history ban doesn’t apply to salary history information that’s disclosable to the public under state or federal law, such as the California Public Records Act or the federal Freedom of Information Act.9

Criminal History Questions Prohibited

The Fair Chance Act, also known as the “Ban-the-Box” law, generally prohibits employers with five or more employees from requesting or considering an applicant's criminal history prior to making an offer of employment to the applicant. There are limited exemptions for certain positions, such as those where a criminal background check is required by federal, state or local law.10

Until a conditional offer of employment has been made, covered employers can’t:

• Include on a job application any question that seeks disclosure of an applicant’s conviction history; or
• Inquire into or consider the conviction history of an applicant.

• Eliminate job application forms, policies and practices that contain a criminal history “check box” or that automatically disqualify applicants because of a criminal record. If you have a multi-state operation, be careful not to rely on applications from other states because they may not align with California law. Train all managers and supervisors involved in the hiring process.

Once an employer has made a conditional offer of employment, it may seek certain criminal history information. However, before denying employment because of a criminal conviction, specific steps must be followed, including providing notice and giving the applicant an opportunity to respond. This process is often referred to as a “fair chance” process. For more information, see Restrictions on Obtaining Criminal History.

Excluding Questions Regarding Social Media Accounts

Employers cannot require or request applicants to disclose information regarding their personal social media accounts. Specifically, employers are prohibited from requiring or requesting an applicant to:11

• Disclose a username or password for the purpose of accessing the applicant’s personal social media.
• Access personal social media in the employer’s presence.
• Divulge any personal social media.

Social media accounts are defined by the law as “an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or account, or Internet profiles or locations.”12

These same prohibitions also apply to current employees. There’s an exception for investigations and employer-issued electronic devices.

Employers cannot retaliate against, discipline, discharge or threaten to discharge an applicant or employee for not complying with an employer’s request or demand to reveal personal social media information in violation of this law.

For more information, see Social Media.

Application Provisions That Protect You

The sample applicationson this website contain several important provisions that can help protect employers, including:

• An authorization to check all references listed by the applicant. Because you can be liable for negligent hiring if you fail to check an applicant’s references, this damage control provision will help protect you from a claim that the applicant’s privacy was invaded when you do check references. It will also be easier to gain information from former employers if they’re aware that their former employee has authorized disclosure to you. Be aware, however, that this release can’t protect you against claims of intentional misconduct or employment discrimination, such as deliberately asking a former employer for protected information about an applicant, like medical history or marital status. Keep in mind, the employee’s authorization for you to check references applies only to the employment application and can’t be used after hire.
• A statement that all answers given by the applicant are true, and any omissions or false information are grounds for rejection of the application or the employee’s termination. Court decisions allow you to use false information on a job application as evidence in your defense against a wrongful termination lawsuit, even if you didn’t discover the information was false until after the employee left.
• An initial statement that any future employment will be on an at-will basis. This clause helps to preserve the presumption that employment is at-will, and states that any contrary representations must be contained in a signed agreement to become binding.

Have applicants initial each provision in the application separately in a space provided in the margin. By drawing attention to these important provisions, you’ll make it less likely that applicants will later be able to successfully claim that they weren’t made aware of what they were signing.

Retaining an Application

Retention requirements vary according to different laws. With respect to applications, the law requires you to keep all job applications of those who weren’t hired for at least four years. Keep applications from those who are hired for the duration of employment plus four years. If you face a claim or litigation involving the hiring practice, keep the application for the duration of the claim or litigation.

• Records Retention Requirements

You’re not required to keep unsolicited resumes or applications. Some employers send them back to the applicant along with a note explaining that there currently are no openings for the position sought. On the other hand, you can decide to keep unsolicited applications and resumes in a separate folder as a pool of candidates who wanted to work for you strongly enough to send resumes even though they didn’t know of a job opening.

1. Lab. Code sec. 450