Advertising nationally for employment positions can present numerous issues as state laws vary widely. The following are some suggestions on dos and don’ts for advertising, as prepared by Davenport Evans lawyer Justin T. Clarke for the Employment Law eNewsletter.

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Ban the Box/Fair Chance Act:

    • Do not use language on job advertisements regarding criminal history inquiries or background checks. Instead, such inquiries should not be discussed until after a formal job offer has been made.

Credit Checks:

    • Do not run credit checks on applicants and employees unless required by law; employees are working in law enforcement; employees will be a named signatory; or employees work in positions that involve access to social security numbers, credit card information, dates of birth, money transfers, proprietary information, or having regular access to $10,000 or more in cash.

Drug Tests:

    • Do not require a drug test unless the employer has a lawful, written policy, employee consents, and drug tests are administered for all applicants applying for the same position.


    • Do still enforce a drug free work place, if desired by the company.

Age Discrimination:

    • Do not cite age-specific ranges or discourage people over 40 from applying for a job.
    • Do not use words such as “recent college graduate;” instead, use words such as “entry level.”
    • Do not use “junior” or “senior” in job advertisements unless they are part of the actual job title.
    • Do not post jobs at locations where only a certain age group might see the advertisement.


    • Do not mention or hint at religion in job postings unless a business qualifies as a religious organization under Title VII.

U.S. Citizenship:

    • Do not state U.S. citizenship required in advertisement.
    • It is permissible to state successful applicants will be required to complete an I-9 to verify their eligibility to work in the U.S.

Americans With Disabilities Act:

    • Do not include terms in advertisements such as “able-bodied,” “strong,” or “healthy.”
    • Do state exact tasks required, such as, “must be able to lift 50 pounds.”

Salary History:

    • Do not ask job applicant about salary history.
    • Do post pay scale in job listings.

Gender-Based Language:

    • Do not hint at a preferred gender in job advertisement, (i.e. use wait staff or server instead of waiter or waitress, sales person or sales representative instead of salesman).


    • Do not mention race in job postings.


    • Do not mention sexual orientation or gender identity in job postings.
These are just some of the issues that job advertising can cause and things to keep in mind when posting a new position. If you have questions, or need assistance with these matters, please reach out and discuss with a lawyer before you post.


Davenport, Evans, Hurwitz & Smith, LLP, located in Sioux Falls, South Dakota, is one of the State’s largest law firms. The firm’s attorneys provide business and litigation counsel to individuals and corporate clients in a variety of practice areas. For more information about Davenport Evans, visit