Should an employer accept applications and resumes when it has no open positions?

Although accepting unsolicited applications or resumes may benefit some employers, the general practice may raise issues related to record retention, unlawful discrimination and possible affirmative action obligations.

Having an open-ended supply of applications on file can benefit some employers that have high turnover and many entry-level jobs, such as fast-food restaurants, because candidates can be contacted and positions filled quickly, without the time and expense of advertising. Even employers with highly skilled positions, especially in niche industries or positions, could hire a valuable employee this way; however, consideration needs to be given to certain issues to determine if the practice is right for the employer.

The first issue to consider is record retention. Both state and federal employment laws require employers to retain employment applications or resumes for at least one year and possibly longer. The Office of Federal Contract Compliance (OFCCP) has narrowly defined who is an "Internet applicant" for federal contractors, but most employers are left to define "applicant" for themselves through policy and practice. When an employer reviews unsolicited applications, those applications are seen as having been considered for employment, thereby triggering an obligation to retain the document. If an employer receives many unsolicited applications, the retention of these documents could be time-consuming and costly if storage requirements increase.

Secondly, accepting and reviewing unsolicited applications, when applied inconsistently, may expose the employer to claims of unlawful discrimination. Federal and state employment nondiscrimination laws require that covered employers conduct their recruitment and hiring in an entirely nondiscriminatory way with respect to the various protected classes, such as age, gender and disability. These laws prohibit not only intentional discrimination but also unintentional discrimination, that is, using neutral selection criteria that have the effect of disproportionately excluding people based on their protected status without sufficient justification. Having an inconsistently followed policy or practice of accepting or not accepting unsolicited resumes could make it appear that the employer is discriminating against protected classes. For instance, if applicant A's unsolicited resume is accepted and leads to a job, but applicant B's resume is not accepted, applicant B may be able to make a case for unlawful discrimination based on protected class.

Finally, federal contractors with affirmative action obligations must capture applicant demographic data. Without a clear practice and policy in place, these data may be missed, and OFCCP violations could apply.

If an employer decides to accept unsolicited resumes or applications, it should accept all unsolicited resumes or applications, and it should have a consistently followed written policy for handling them. The policy should have clear guidelines on how the documents will be reviewed and by whom, how long they will be retained, and how the applicant will be notified if he or she is or is not considered for future open positions.

If an employer does not accept unsolicited resumes, the organization's website should state that unsolicited resumes or applications are not accepted. Also, public-facing employees should be made aware of this policy and be provided with a script to use when individuals ask for an application or wish to submit a resume. HR professionals should have procedures in place for handling unsolicited resumes received and a response to individuals informing them that their resume is not being considered. See Rejection Letter – Unsolicited Resume.