EEOC: Unselected Applicants’ Information Must Be Saved, Too

By Roy Maurer May 18, 2016
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Employment statutes require covered employers to retain job candidates’ records—even for the candidates who aren’t hired—including applications, resumes, interview notes, assessment tests, reference checks, drug screens and background screens.

The Coca-Cola Bottling Company of Mobile, Ala., was recently found to be in violation of federal record-keeping laws as a result of an investigation into its hiring practices. Responding to a female claimant’s charges that the company hired less-qualified men for available positions, the Equal Employment Opportunity Commission (EEOC) requested the bottler’s employment applications for potential and actual hires dating back to 2010, the year that the claimant applied for two open positions at the company. Coca-Cola Bottling uses an online application process but couldn’t produce any submitted applications from 2010 to the present, in violation of the record-retention provisions of Title VII of the Civil Rights Act of 1964, according to the complaint.

“Employers should take inventory of their record-keeping on employees: current, former and prospective,” said Anne Knox Averitt, an attorney with law firm Bradley Arant Boult Cummings, based in Birmingham, Ala. “These practices are best implemented on the front end before a disgruntled applicant involves the EEOC.”

Save Those Records

Covered employers must retain applicant records for at least one year from the date that the record was made under Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act and the Age Discrimination in Employment Act (ADEA).

“Some employers are subject to longer retention requirements,” Averitt said, referring to state and local governments, educational institutions, and certain federal contractors and subcontractors. These employers must preserve applicant records for two years from the date the record was created. Employers must retain all relevant records if a discrimination charge or lawsuit is pending, she added.

For hiring decisions, employers should ensure retention of all applications or resumes, as well as any screening processes, telephone interviews or skills testing records. Basically, “anything that will explain the decision-making process and why a certain person was selected,” Averitt said. “A handwritten note from human resources may seem insignificant now, but down the road, that note could be the linchpin for an employer’s defense to a discrimination charge.”

As for employees, Averitt recommended that employers consider keeping separate files for each person, such as a central personnel file, a human resources file and a payroll file.

Additionally, employers are required to maintain all payroll records under the Fair Labor Standards Act and the ADEA for three years.

“There is no one correct way, but it is worth considering the best way your company might organize and maintain employee records,” Averitt said.

Roy Maurer is an online editor/manager for SHRM. Follow him @SHRMRoy

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