Various laws either expressly require or essentially necessitate that employers retain information about job applicants for some period of time. These applicant recordkeeping requirements arise primarily from employment discrimination statues and obligations imposed on government contractors. But good business records are vital in defense of virtually any potential legal claim.

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EEOC Recordkeeping Rules

The U.S. Equal Employment Opportunity Commission (EEOC) has promulgated recordkeeping rules related to the laws it enforces. These include applicant recordkeeping.

Under the rules:

All Personnel and Employment Records made or used (including, but not limited to, requests for reasonable accommodation, application forms submitted by applicants, and records dealing with hiring, promotion, demotion, transfer, lay-off or termination, rates of pay, compensation, tenure, selection for training or apprenticeship, or other terms of employment) must be preserved for these periods:

1. Private employers must retain such records for one year from the date of making the record or the personnel action involved, whichever occurs later, but in the case of involuntary termination of an employee, they must retain the terminated employee’s personnel or employment records for one year from the date of termination.
2. Educational Institutions and State and Local Governments must retain such records for two years from the date of the making of the record or the personnel action involved, whichever occurs later, but in the case of involuntary termination of an employee, they must retain the terminated employee’s personnel or employment records for two years from the date of termination.

Uniform Selection Guidelines

Various federal agencies, including the EEOC, worked together to issue “Uniform Guidelines on Employee Selection Procedures” in 1978. These guidelines apply generally to employers subject to Title VII (15+ employees) and federal contractors subject to Executive Order 11246’s affirmative action requirements. They cover an array of topics related to selection procedures used as the basis for any employment decision. This includes validation of employee testing procedures, for example. But also routine hiring interviews, and most everything in between.

The Uniform Selection Guidelines provide that:

“Each [employer] should maintain and have available for inspection records or other information which will disclose the impact which its tests and other selection procedures have upon employment opportunities of persons by identifiable race, sex, or ethnic group . . . in order to determine compliance with these guidelines.”

The Guidelines state that employers with 100+ employees “should maintain and have available for each job information on adverse impact of the selection process for that job and, where it is determined a selection process has an adverse impact, evidence of validity . . . .”

The Guidelines afford “Simplified record keeping for users with less than 100 employees”. These small employers need only retain records showing the:

• number of persons hired, promoted, and terminated for each job, by sex, and where appropriate by race and national origin;
• number of applicants for hire and promotion by sex and where appropriate by race and national origin; and
• selection procedures utilized (either standardized or not standardized).

Obtaining the Data

The Guidelines themselves specify no particular procedure for obtaining data on applicants’ race, sex, or ethnic classifications. Other EEOC guidance allows that:

• “Where applications are made in person, a user may maintain a log or applicant flow chart based upon visual observation, identifying the number of persons expressing an interest, by sex and by race or national origin; may in some circumstances rely upon personal knowledge of the user; or may rely upon self-identification.”
• “Where applications are not made in person and the applicants are not personally known to the employer, self-identification may be appropriate. Wherever a self-identification form is used, the employer should advise the applicant that identification by race, sex and national origin is sought, not for employment decisions, but for record-keeping in compliance with Federal law.”

Federal Contractors

As part of their affirmative action programs, federal contractors must analyze personnel activity data. They must determine whether there are selection disparities. In connection with those requirements, regulations of the Office of Federal Contract Compliance Programs (OFFCP) provide that covered contractors must preserve all personnel records for at least one or two years: One year for contractors with fewer than 150 employees or maximum contract size under $150,000. Two years for contractors with 150+ employees or a contract of at least $150,000.

Federal contractors with a contract of $100,000+ and 50+ employees must also create and retain evaluations of outreach and recruitment efforts, certain comparisons regarding applicants and employees, and records related to hiring benchmarks for at least three years.

Collectively, these requirements compel covered federal contractors to identify “applicants” and preserve records and data about them. This may include data about each applicant’s race, ethnicity, sex, veteran, and disability status.

Internet Applicants

Because the Internet created new hiring processes, the OFFCP issued guidelines to define who qualifies as an “Internet Applicant.”

An “Internet Applicant” is an individual who satisfies all four of these criteria:

• The individual submitted an expression of interest in employment through the Internet or related electronic data technologies;
• The contractor considered the individual for employment in a particular position;
• The individual’s expression of interest indicated that the individual possesses the basic qualifications for the position; and
• The individual, at no point in the contractor’s selection process prior to receiving an offer of employment from the contractor, removed himself or herself from further consideration or otherwise indicated that he/she was no longer interested in the position.

Related Internet Applicant rules apply to federal contractors who accept electronic submissions for a position. If you may be subject to these applicant recordkeeping requirements, check with your legal counsel and/or affirmative action administrators to make sure you are retaining the appropriate information regarding applicants, including those who apply online.

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Statutes of Limitations

Beyond satisfying express applicant recordkeeping requirements, employers must be mindful of defending against claims by employees or unsuccessful job candidates. If the employer has not retained all records related to the hiring process, it may face obstacles in providing the validity of its process and decisions. Thus, the statutes of limitations for legal claims are a consideration in determining how long to keep these records.

The federal discrimination laws generally require an applicant or employee to file a claim within 300 days (sometimes less). However, claims of patterns or practice or continuing violation may allow a longer look back period.

State discrimination laws may have even longer statutes of limitations. For example, individuals have up to three years to bring claims under the New York State Human Rights Law.

Overall Suggestions on Applicant Recordkeeping

All employers should create and retain sufficient documentation to support their hiring decisions. Some employers will have specific minimum obligations, especially including federal contractors with affirmative action requirements.

It’s possible that employees or applicants will attempt to litigate years after the underlying decisions. Therefore, it is often prudent to retain all personnel records indefinitely. Fortunately, modern technology permits employers to keep these records at relatively low cost. Scanning and electronic storage can also enable efficient searching and recall of documents when needed.

Again, this is only a general overview of some recordkeeping requirements. An employer’s specific circumstances may warrant additional or different considerations.

For more information about legal issues related to modern hiring practices, check out this webinar on the Legal Risks of Social Media in Hiring.