May 5, 2020

Federal law requires employers with 15 or more employees to keep employment applications, resumes and related hiring information and documents for at least one year after creation of the document or the hire/no hire decision, whichever is greater.  While federal contractors with 50 or more employees must keep these documents for two years, unless the federal contractor has fewer than 150 employees or does not have a government contract of at least $150,000, then the minimum record retention period is one year.  The employment records related to selection and hiring which employers are required to maintain include:

• Job ads
• Job applications and resume materials (This applies even if the applicant wasn’t actively considered for an open position because the applicant didn’t meet the minimum qualifications or because the applicant didn’t comply with all the application requirements.)
• Screening tools and tests (This includes copies of any tests and test results used to evaluate applicants, including tests which were done online.)
• Interview notes and other records related to the hire or no hire decision (This could include information on the number of applicants by sex, race and national origin.)

Besides being required by law, having this information on file can also be helpful to employers in defending against “failure to hire” cases.  The problem, however, is due to the ease with which applicants can now email their resumes to employers.  Because of email, this record keeping requirement has become onerous for employers – particularly those with web sites.  The Equal Employment Opportunity Commission recently looked into this problem and, together with some other federal agencies, arrived at some guidelines which define who, among all those who contact employers over the Internet, by mail or by fax, are true job applicants for purposes of complying with the federal record keeping requirements.  Under these guidelines, a person generally becomes an applicant when:

1. The employer has acted to fill a particular position;
2. The individual has followed the employer’s standard procedures for submitting an application for the position; and
3. The individual has indicated an interest in the particular position.

This is good news for employers, as it means you can now throw away all those unsolicited resumes.  To make sure you are in compliance with this federal requirement, though, it is advisable that employers have a written policy on the subject which specifies when applications and resumes will be accepted.  Employers who do not want unsolicited resumes and applications would be wise to so state on their web sites.  When an unsolicited resume is received, it is a good idea to notify the individual who sent it that unsolicited resumes are not kept on file, and that he/she will need to resubmit the resume for a specific job opening should one arise.  Further, when a position is advertised, it is a good idea to include in the advertisement or job posting a deadline for receipt of applications.

Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net).  Please visit our website at eskridge.hv-dev.com.

This article is based on the law as of the date posted at the top of the article.  This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.